Whether the HSE was justified in refusing access to certain information in the applicant's medical records under section 37(1) of the FOI Act on the basis that it contains personal information relating to individuals other than the applicant
09/08/2018
Background
On 19 December 2017, the applicant submitted a request to the HSE for a copy of her medical notes from 31 August 2016 to 19 December 2017 and any incident forms from 1 May 2017 to 19 December 2017. On 16 February 2018, the HSE part granted the request. It redacted certain information from five of the records released. By letter dated 21 February 2018, the applicant sought an internal review of the HSE-s decision as she contended a number of records were missing and she disagreed with the HSE-s decision to redact parts of her medical notes. As no internal review decision issued within the prescribed time, the applicant sought a review by this Office. Following contact from this Office, the HSE wrote to the applicant on 25 April 2018 affirming its original decision on the basis of section 15(1)(a) and section 37 of the FOI Act. On 1 May 2018, the applicant confirmed that she wished the review of the HSE's decision to redact certain records to proceed.
I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the HSE and the applicant as outlined above and to correspondence between this Office and both the HSE and the applicant on the matter. I have also had regard to the contents of the records at issue.
Scope of Review
This review is solely concerned with whether the HSE was justified in its decision to refuse access to parts of the applicant's medical notes under section 37(1) of the FOI Act.
Preliminary Matters
While the applicant has outlined her reasons for seeking access to the redacted information, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information.
It should also be noted that in making my decision, I must comply with section 25(3) of the FOI Act, which requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, I am constrained in the description I can give of the information to which the HSE has refused access and in the detail that I can give in my analysis. I must also take account of the fact that the grant of access to a record under the FOI Act is understood, effectively, to be equivalent to the record's release to the world at large given that the Act places no restrictions on the use to which records released under the Act may be put.
Analysis and Findings
In its submission to this Office the HSE argued that the redacted information was exempt under both section 35 and section 37 of the FOI Act. Having considered the relevant redactions, I am satisfied that section 37 is of most relevance in this case. Section 37(1) provides for the mandatory refusal of a request where the FOI body considers that access to the records sought would involve the disclosure of personal information relating to individuals other than the requester. Furthermore, section 37(7) provides that an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester, commonly referred to as joint personal information.
"Personal information" is defined at section 2 of the Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or (b) is held by an FOI body on the understanding that it would be treated by it as confidential. Having regard to that definition, I am satisfied that all of the redacted information is either personal information relating to individuals other than the applicant (two of the redactions comprise information about other patients that was recorded in error on the applicant's file and was struck through and marked as an error) or joint personal information relating to the applicant that is inextricably linked to personal information relating to another individual. I therefore find that section 37(1) applies.
Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case, namely (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
Furthermore, section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the of the information would be to the benefit of the person to whom the information relates.
I am satisfied that the release of the redacted information would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply. On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the persons to whom the information relates.
In considering where the public interest lies, I have had 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] IESC 26 (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.
The FOI Act acknowledges that there is a public interest in promoting the openness and accountability of public bodies in the manner in which they perform their functions. On the other hand, the FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore 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.
It seems to me that the public interest in promoting the openness and accountability of the HSE has been served to some extent in this case by the release of the vast majority of the records coming within the scope of the applicant's request. The question I must consider is whether the public interest in releasing the redacted information outweighs, on balance, the privacy rights of the individuals to whom the information relates. In my view, it does not. I find therefore, that section 37(5)(a) does not apply in this case.
Consequently, I find that the HSE was justified in its decision to redact certain information from the records at issue under section 37(1) of the FOI Act. In the circumstances, there is no need for me to consider the HSE-s submission concerning the applicability of section 35.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE in this case.
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.
Stephen Rafferty
Senior Investigator
