Whether the HSE was justified in its decision to refuse the applicant's request for access to the medical records of his late brother under section 37(1) of the FOI Act

26 February 2018 

Background

On 30 August 2016 the applicant sought access, through his solicitor, to all records held by Mayo General Hospital relating to his deceased brother. In its decision of 26 July 2017, the HSE refused the request under section 37(1) of the FOI Act. The applicant sought an internal review of that decision on 21 August 2017 following which the HSE affirmed the original decision. The applicant sought a review of the HSE's decision by this Office on 7 November 2017. 

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the HSE, and to the contents of the records at issue. I have decided to conclude the review by issuing a formal, binding decision.

Scope of Review

This review is concerned solely with the question of whether the HSE was justified in refusing the applicant's request for access to the medical records of his deceased brother under section 37(1).

Preliminary Matter

Section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the HSE to satisfy this Office that its decision to refuse the applicant's request was justified.

Analysis and Findings

The Legislation
Subsection (1) of section 37 requires, subject to the other provisions of the section, an FOI body to refuse a request where access to the records would involve the disclosure of personal information, including personal information relating to a deceased individual. However, under subsection (8), Regulations have been made by the Minister for Public Expenditure and Reform which provide for access by certain third parties, including the next of kin, to records of a deceased individual.

The Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016), as amended, provide for the grant of access to the records of a deceased individual if the requester is the spouse or the next of kin of the individual and, in the opinion of the head, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request.

It is not disputed that all of the information at issue in this case comes within the definition of personal information in section 2 of the Act, nor is it disputed that the applicant is the brother of the deceased and is considered to be the next of kin for the purposes of the Regulations. The issue to be considered, therefore, is whether, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request.

Pursuant to section 48(1) of the Act, the Minister for Public Expenditure and Reform published guidance concerning access to records relating to deceased persons. Under section 48(3) public bodies must have regard to such guidance in the performance of their functions under the Act. The guidance states that it is a matter for the decision maker to make such enquiries and engage in such consultation as is necessary to allow him or her to decide if the public interest would be better served by granting than by refusing the request. It suggests that certain factors should be taken into consideration when deciding if release is appropriate to the spouse or next of kin of the deceased, including:

• the confidentiality of personal information as set out in section 37(1)
• whether the deceased would have consented to the release of the records to the requester when living
• whether the person had outlined arrangements in his or her will or other instrument in writing consenting to the release of personal records
• would release damage the good name and character of the deceased
• the nature of the relationship of the requester to the deceased and the circumstances of their relationship before the deceased's death
• the nature of the records to be released. The guidance states that if the record is inherently private and of a very sensitive nature, then there must be compelling reasons for its release. In relation to medical records in particular, it states that due regard should be had to the confidentiality of medical records in accordance with the relevant Irish Medical Council guidance (currently the Guide to Professional Conduct and Ethics for Registered Medical Practitioners - 8th edition published May 2016)
• whether the requester can get the information they want without accessing the records of the deceased
• any other relevant circumstances that the requester may set out.

The HSE's position
In its submission to this Office, the HSE confirmed that it had considered the applicant's request in accordance with S.I. 218 of 2016. It provided details of exchanges of correspondence with the applicant's solicitors in relation to the public interest factors to be taken into account, including a letter dated 3 April 2017 wherein the applicant's solicitors identified 12 matters they considered to be public interest factors in favour of release.

The HSE stated that it considered the factors outlined to be more in the nature of private interests rather than public interests, having regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v the Information Commissioner [2011] 1 IR 729, [2011] IESC 26 (the Rotunda judgment) . It added, however, that it sought further clarification of one point which referred to the care of elderly people "to see that they are properly and adequately cared for and that their best interests, both legal and medical are and were at all times appropriately and properly catered for". Specifically, the decision maker sought details of any information which might suggest that obligations were not met in respect of the care provided to the deceased. The HSE stated that no further clarification was provided but that the sister of the deceased provided a written note to say that the applicant is not happy about the deceased's will and that she consents to him seeking the records in question, and that a similar note was received from another brother of the deceased.

The HSE argued that while the decision maker attempted to establish if there was an underlying public interest factor concerning the care and treatment of the deceased prior to his death, this was not addressed by the applicant's solicitors and there was no evidence to support the position that it would be in the public interest to release the records concerned on such grounds. It argued that the other points outlined, and supported by the letter received from the deceased's sister, related in the main to the deceased's will. The HSE suggested that this is the real reason why the records are being sought.

Nevertheless, the HSE stated that the factors considered in favour of release of the records were the public interest in the requester exercising a right of access under the FOI Act and the public interest in ensuring openness and accountability. It stated that the factors considered against release included the public interest in

• protecting and upholding the right to privacy of individuals regarding their records which are held by a public body
• safeguarding patient confidentiality even after their death
• the entitlement of a service user to a degree of privacy concerning their sensitive personal information
• a public body complying with both legal and ethical codes of ethical conduct in respect of personal sensitive information/records.

The HSE further argued that the right to privacy, even after death, is a very strong right and that it has a duty to maintain the confidentiality of its patients at all times. It argued that release of the records is considered as release to the world at large and that the records are of an inherently private nature. It stated that having considered the confidentiality of the records concerned, the lack of clarity as to whether the deceased would have consented to the release of the records, the inherently private nature of the records, the Irish Medical Council guidance, and the reasons set out by the applicant's solicitors for seeking access, it decided to refuse the request under section 37(1).

Analysis of the HSE's position
It is important to note at the outset that by making the relevant Regulations, the Oireachtas has determined that the next of kin shall have a right of access to the records of deceased persons, subject to consideration of the public interest and all the circumstances. While I fully accept that medical records are inherently private and confidential, it seems to me that by making specific provision for access to the records of deceased persons, the Oireachtas envisaged that the next of kin would have a potential right of access to all relevant records, including medical records. Had it been intended that medical records would not potentially fall for release, such a restriction could easily have been provided for.

I also fully accept that as records released pursuant to the FOI Act are released without any restriction as to how they may be used, such release is regarded, in effect, as release to the world at large. This is true of all records released under FOI regardless of the identity of the requester. Indeed, it is also true of requests where the requester seeks his/her own personal information. Nevertheless, the fact remains that the Oireachtas saw fit to determine that access to the records of deceased persons shall be granted to certain categories of requesters, provided the requirements of the Regulations have been met. Accordingly, I do not accept that the fact that the release of records under FOI is essentially release to the world at large provides a reasonable ground for refusing access to a category of requester that the Oireachtas has determined should be granted access.

I am also aware that the relevant Irish Medical Council guidance provides that patient information remains confidential, even after death. However, that guidance expressly acknowledges that there are circumstances where release may be appropriate. It suggests that if it is unclear whether the patient consented to disclosure of information after their death, consideration should be given to how disclosure of the information might benefit or cause distress to the deceased-™s family or carers, to the effect of disclosure on the reputation of the deceased and to the purpose of the disclosure.

On the matter of where the public interest lies and the factors to be considered, this Office generally has regard to the obiter comments of Macken J. in the Rotunda case. It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. However, I must bear in mind that these comments were made in relation to the requirements of FOI legislation in general and not to the very specific and detailed provisions covering access by next of kin to medical records of deceased persons. The Regulations and guidance make it clear that a range of matters such whether the deceased would have consented to the release of the records to the requester when living, the nature of the records to be released, and "any other relevant circumstances" must be considered.

Therefore, matters which may be seen as private interests cannot be excluded solely on the basis that they are not public interest factors.
The HSE rightly identified the public interest in ensuring openness and accountability as a public interest factor in favour of release of the records. There is certainly a public interest in enhancing transparency and accountability of the HSE in respect of the care and treatment that was afforded to the deceased. However, the HSE appears to have taken the view that as the requester did not provide any information to suggest that there may have been some concerns concerning the care and treatment of the deceased, the public interest in enhancing transparency and accountability is somehow lessened. If this is its argument, then I disagree.

While the next of kin of a deceased person might have no concerns whatsoever as to the standard of care and treatment afforded to the deceased, this does not mean that the relevant public body should not be subject to transparency or accountability in connection with that care and treatment. Indeed, it could be argued that only by having all relevant information available could the next of kin of a deceased person draw informed conclusions as to the standard afforded.

As the long title to the FOI Act states, its purpose is to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies. Furthermore section 11(3) provides that in performing any function under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and the need to strengthen the accountability and improve the quality of decision making of FOI bodies.

The HSE also stated that it had regard to the fact that there was a lack of clarity as to whether the deceased would have consented to the release of the records. In circumstances where neither the Regulations nor the associated guidance require the next of kin, as requester, to provide evidence to suggest that such consent would have been forthcoming, it seems to me that it is entirely appropriate to draw conclusions from the particular circumstances of the case under consideration.

Having examined the records at issue in this case, I see nothing to suggest that the deceased would have withheld consent to the release of the records to his next of kin when living, nor do I see anything to suggest that release would damage the good name and character of the deceased. While I am aware that the applicant resides outside the State, I do not believe that a negative inference can be drawn from this. Furthermore, it is relevant that the applicant's sister is listed in the medical records a number of times as next of kin and that she has put on record that she is supportive of the applicant's request to access the records of the deceased, as has his brother.

I note that the HSE appears to have placed some weight on the fact that the applicant is seeking access to the records arising from concerns about the deceased's will. I accept that a requester's reasons for making a request may be an appropriate matter to be considered when evaluating "all the circumstances". I also accept that one motivation behind the applicant's request is to seek further information about the deceased's capacity which could lead to a challenge to the deceased's last will and testament on the grounds of alleged lack of capacity of the deceased at the time of the making of the will. However, as I have outlined above, the applicant's solicitor also highlighted a number of other public interest arguments in favour of seeking access including:

• Statutory Bodies have an obligation to elderly people (in this case the deceased) to see that they are properly and adequately cared for and that their best interests, both legal and medical are and were at all times appropriately and properly catered for
• There is a public interest and legal obligation on statutory bodies to ensure that vulnerable people are not taken advantage of and are properly advised medically and otherwise as to their entitlements and rights.  They should be protected. 
• There is an interest in promoting openness and transparency in the medical capacity of the deceased and the level of care and treatment received by the deceased.

In any event, I do not accept that the fact that the applicant is seeking access to the records arising from concerns as to the testamentary capacity of the deceased provides, of itself, a sufficient reason to refuse his request. Indeed, it might be argued that release of the medical records of a deceased person to the next of kin to allow for informed conclusions to be drawn as to the testamentary capacity of the deceased is a factor serving to support the release of such records. In addition, it is again relevant that the applicant has the support of the deceased's siblings.

In the particular circumstances of this case, I am not satisfied that the HSE has justified its refusal of the applicant's request under section 37(1). In my view, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the applicant's request, as the next of kin, for the records relating to his deceased brother. I therefore find that the HSE was not justified in refusing the applicant's request for those records.
 
Personal Information relating to other parties
A number of the records held by the HSE contain references to a number of third parties. For example, certain individuals are recorded on a number of the records as next of kin or contact persons, along with their contact details. Furthermore, parts of page 60 contain information relating to third parties that is inextricably linked with personal information relating to the deceased. The Regulations do not provide for a right of access to such information. I am satisfied that section 37(1) applies to this information.

However, as I have outlined above, subsection (1) is subject to the other provisions of the section. Subsections (2) and (5) essentially serve to disapply subsection (1). Subsection (2) sets out various circumstances where subsection (1) does not apply while subsection (5) provides for the release of records to which subsection (1) applies where the body considers that on balance (a) the public interest in granting the request outweighs the public interest in protecting the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the individual to whom the information relates.

I am satisfied that none of the circumstances set out in subsection (2) arise in this case, nor do I consider that the release of the information would benefit the individuals concerned. It therefore remains for me to consider whether the public interest in granting access to the information would, on balance, outweigh the public interest in protecting the privacy rights of those individuals. 

The FOI Act itself recognises the public interest in ensuring the transparency and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

The question I must consider is whether the public interest in further enhancing the transparency and accountability of the HSE is sufficient to outweigh, on balance, the privacy rights of the third parties concerned. In my view, it is not. I fail to see how the disclosure of the information at issue would serve to enhance the transparency and accountability of the HSE in relation to the services it provided. I find, therefore, that section 37(1) applies to that information.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of the HSE to refuse the applicant's request for access to the medical records of his deceased brother under section 37(1). I direct the release of all records subject to the redaction of the personal details of the various individuals who are recorded on the records as next of kin or contact persons, and subject to the following specific redactions from page 60

• all text after "... over his pension collection" and before "I reviewed ..."
• all text after "... Cryan" and before "... at that point in time"
• all text after "... regarding his will" and before "... and as Mary"

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision.  In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Stephen Rafferty
Senior Investigator