Whether the HSE was justified in its decision to refuse access to records relating to the applicant's deceased great grandfather, under section 37(1) of the FOI Act

4 September 2018

Background

On 1 August 2017, the applicant made a request to the HSE for information relating to her deceased great grandfather who was a patient in a named psychiatric hospital in the Midlands. On 18 October 2017, the HSE issued a decision in which it provided a limited amount of information relating to the deceased but stated that there was no automatic right of access by third parties to records of the deceased. On 2 November 2017, the HSE received a request from the applicant for an internal review of that decision. The HSE issued its internal review decision on 8 December 2017, in which it refused access to the records sought under section 37 of the FOI Act on the ground that the disclosure of the information sought would involve the disclosure of personal information relating to the deceased. On 3 June 2018 the applicant sought a review by this Office of the HSE's decision. 

In conducting my review, I have had regard to the correspondence between the applicant and the HSE as outlined above and to the correspondence between this Office and both parties on the matter. 

Scope of the Review

This review is concerned solely with whether the HSE was justified in refusing access to the records sought under section 37(1) of the FOI Act.  

Preliminary Matter

Section 22 (12)(b) of the FOI Act provides that when I review 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, the onus is on the HSE to satisfy me that its decision to refuse the request was justified. 

 
Analysis and Findings

Section 37(1) of the Act provides for the refusal of a request where the body considers that access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester, including personal information relating to a deceased individual. I accept that the disclosure of the records at issue in this case would involve such a disclosure. 

However, section 37(8) provides that, notwithstanding subsection (1), the Minister may provide by regulations for the grant of a request where the individual to whom the record concerned relates is deceased. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016).  The Regulations provide that notwithstanding section 37(1), a request may be made for records which involves the disclosure of personal information relating to a deceased individual and shall, subject to the other provisions of the FOI Act 2014, be granted, where the requester belongs to one of a number of classes, including the following:

"... the requester is the spouse or 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".

While I make no finding as to whether or not the applicant, as a great-granddaughter of the deceased, qualifies as next of kin, which is defined in S.I. 218 of 2016, I note that the HSE has confirmed to this Office that it had not considered the applicability of the Regulations when processing the applicant's request. 

In the circumstances, I consider that the appropriate course of action is to annul the HSE's decision and direct it to undertake a fresh decision-making process, having due regard to section 37(8) and the provisions of the 2016 Regulations. 

For the benefit of the applicant, I note that the Central Policy Unit of the Department of Public Expenditure and Reform has published guidance on the application of S.I. 218 of 2016,  available athttps://foi.gov.ie/download/cpu-notice-25-access-to-records-relating-to-deceased-persons-prepared-under-section-378-of-the-freedom-of-information-act-2014/.The Guidance states that in order to establish his or her claim to be the next of kin of the deceased, the requester would be required to submit an affidavit or other acceptable proof establishing the relationship and showing the necessary State certificates. 

It is also important to note that the mere fact of a requester being the next of kin does not, of itself, mean that the requester is automatically entitled to access the records of the deceased. As I have outline above, when considering such a request, the public body must consider 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.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the HSE in this case. I direct it to undertake a fresh decision making process in respect of the applicant-™s request, having due regard to the provisions of the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016.

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