Whether the Hospital was justified under section 37 of the FOI Act in refusing to grant the applicant's request for access to her late father's medical records

20 July 2018 

Background

In or around 31 August 2017, the applicant made an FOI request to the Hospital for access to her late father's medical records. The Hospital's decision of 16 October 2017 refused to grant access to the records on the basis that they contained the deceased individual's personal information (section 37). The applicant sought an internal review of this decision on 20 November 2017. She said that the Hospital had acknowledged her as next of kin. She also referred to her late father's will being contested and to the possibility of his medical conditions being hereditary. 

The Hospital's internal review decision of 25 January 2018 affirmed its refusal of the request. It also said that it had granted the applicant access to records concerning her late father's testamentary capacity on foot of an earlier FOI request she had made. It said that it did not consider it necessary to grant full access to the records to ensure treatment for any hereditary conditions. It said that, despite consultations, it had not proved possible for it and the applicant to agree to a refinement of the request to enable further access.

On 23 February 2018, the applicant sought a review by this Office of the Hospital's decision.

I have decided to conclude my review by making a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to submissions made by the Hospital and the applicant. I have had regard also to the records at issue and to the provisions of the FOI Act (including Regulations made under section 37). 

Scope of the Review

This review is confined to considering whether the Hospital has justified its refusal of the applicant's request. 

Findings

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant FOI body shows to my satisfaction that its decision was justified. 

Sections 37(1) and 37(8) - Access by certain categories of persons to personal information of a deceased individual 

It is not in dispute that the requested records contain the personal information of the applicant's father who is deceased. Section 37(1) of the FOI Act requires the refusal of an FOI request where access to the records would involve the disclosure of personal information (including personal information relating to a deceased individual). 

However, Regulations have been made by the Minister for Public Expenditure and Reform under section 37(8) of the FOI Act, which provide for access by certain third parties, including the next of kin, to records of a deceased individual. The Regulations (S.I. No. 218 of 2016, as amended by S.I. No. 558 of 2016), 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. 

The Hospital's decisions do not refer to section 37(8) or the associated Regulations. However, I am satisfied that it has considered the relevant provisions.

I must also take into account Guidance that was published in May 2017 by the Minister for Public Expenditure and Reform under section 48(1) of the FOI Act (i.e.Central Policy Unit Notice 25, available onwww.foi.gov.ie). Section 48(3) of the FOI Act provides that FOI bodies "shall have regard to" such guidelines when performing their functions under the FOI Act.

Section 3.2 of the Minister's Guidelines list the following as factors to be considered:

• the confidentiality of personal information, as set out in section 37(1) of the FOI Act
• 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
• whether release would 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 Guidelines say that, if the record is inherently private and of a very sensitive nature, then there must be compelling reasons for its release, which might include the release to a blood relative of records that show a hereditary medical condition. In relation to medical records in particular, the Guidelines say that due regard should be had to the confidentiality of medical records in accordance with the Irish Medical Council Guide to Ethical Conduct and Behaviour (the Medical Council Guide). They also say that, subject to other considerations, records containing the joint personal information of both the requester and the deceased might fall to be released
• 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 Hospital does not appear to dispute that the applicant is her late father's next of kin. Rather, its position is that, 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. 

Submissions on the circumstances and the public interest

The Hospital acknowledges that the applicant was listed in her late father's records as one of the contacts and that she had been involved in her late father's Hospital care around the time of his death. However, its key argument is that the records indicate that the deceased would not have wanted his records released under FOI. It also considers the contents of the records to be sensitive. Its submission to this Office does not refer to any consideration it gave to the public interest. 

I have already outlined the reasons the applicant gave at internal review stage for making her request. She has made further arguments to this Office, many of which it is not appropriate to detail in this decision. She also says that her late father's body was released to her, that she organised his funeral and that she cannot get the information she needs without access to the records. She says that there is nothing in her late father's will or any documents about his medical records, that she does not intend to damage his good name or character and does not want third party records. She says that her father would have "no problem" with her obtaining his records, which she says was evident from their relationship as witnessed by hospital staff.

Analysis 

I should say at the outset that I have considered this case in the context of its own particular circumstances and examined the content of the records. It is also important to note that by making the relevant Regulations, the Oireachtas has determined that 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. 

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 theRotunda case[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, a link to which is available onwww.oic.ie]. 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. 

I accept that medical records, as are those the subject of this review, are inherently private and confidential. However, this factor in and of itself is not a sufficient reason to refuse access to the records of a deceased person. Recent decisions of this Office (Case Numbers 170521 and 170427 available onwww.oic.ie) addressed this issue and ultimately directed the release of the medical records of a deceased person to the next of kin.  

As regards the deceased's capacity, I do not accept that the fact that the applicant has expressed concerns as to the testamentary capacity of the deceased provides, of itself, a sufficient reason to refuse her 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. I have also noted the applicant's arguments as to why it would be of benefit to her to gain access to her late father's records and that the question of access to them is not dealt with in her late father's will or other documents. However, I cannot but give significant weight in this case to the fact that the records indicate that the applicant's late father would not consented to the applicant having access to his records when living. 

There is a public interest in ensuring transparency in the manner in which the Hospital carries out its functions and provides adequate care to patients, particularly vulnerable patients. The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. While it is not evident in this case that the next of kin of the deceased person had concerns about the standard of care and treatment afforded to him, this does not mean that the public interest in transparency and accountability is lessened. 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 of care afforded. 

At the same time, I must also take account of the fact that the Regulations explicitly recognise a public interest in preserving the confidentiality of personal information. As already noted, and unlike the circumstances in Case Numbers 170521 and 170427, the records indicate that the applicant's late father would not consented to the applicant having access to his records when living. While this may be distressing for the applicant, I cannot go behind what is on the face of a record or attempt to investigate how or why the deceased wishes were expressed in the way they are recorded. 

It is my view, having regard to particular circumstances of this case, the public interest, including the public interest in the confidentiality of personal information, would on balance not be better served by granting than by refusing to grant the applicant's request, as the next of kin, for the medical records relating to her late father. I therefore find that the Hospital was justified in refusing the applicant's request for those records. I will now go on to consider whether any right of access arises under the other provisions of section 37. 

Section 37(1) 

The records concern the applicant's late father's medical history, and also include quite a lot of references to other identifiable individuals, including the applicant. I find them to be exempt under section 37(1) of the FOI Act. 

At this point, it is useful to set out this Office's approach to the grant of access to parts of records. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). 

In so far as the Commissioner's position on granting partial access to records is concerned, he takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs. 

Section 37(2)

There are some circumstances, provided for at section 37(2) of the FOI Act in which the exemption at section 37(1) does not apply. 
The applicant may consider that, because some of the records also relate to her, she is entitled to them under section 37(2)(a). However, section 37(7) provides that, notwithstanding section 37(2)(a), a request shall be refused where access to a record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to individual(s) other than the requester ("joint personal information"). Section 37(7) is also subject to sections 37(2)(b) to (e) and I am satisfied that none of these provisions are relevant here. 

Section 37(5)

Section 37(5) provides that a record, which is otherwise exempt under section 37(1), may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. 

I do not consider the applicant to be entitled to access to the records under section 37(5)(b). It is not relevant whether the records would be of benefit to her. The question is whether the grant of access would be of benefit to her late father and all of the other persons referred to in the records. I have no reason to consider this to be the case. 

In considering section 37(5)(a), and as set out above, I accept that the grant of access to the records would serve the public interest in ensuring the Hospital's openness and accountability regarding its treatment of the applicant's late father. However, the withheld records contain personal information about the applicant's late father and identifiable individuals other than the applicant. I accept that directing the grant of access to the records would result in a significant breach of their rights to privacy. 

On balance, I find that the weight of the public interest in granting the request for the details concerned is not such that it outweighs the public interest that the right to privacy of the applicant's late father, and of individuals other than the applicant whose personal information is also in the records, should be upheld.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Hospital's refusal to grant the applicant's request. 

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 not later than four weeks after notice of the decision was given to the person bringing the appeal. 

Elizabeth Dolan
Senior Investigator