Whether the HSE was justified in redacting certain information from the applicant's mental health care records under section 37(1) of the FOI Act

6 December 2018 

Background

On 11 June 2018, the applicant made sought access to all records relating to her care from 2001 onwards held by Kerry Mental Health Services. 

In its decision of 24 July 2018, the HSE referred to a previous request the applicant made for records on 14 August 2017 following which 168 records released. It stated that subsequent to the more recent request a second volume of 85 records was discovered. It granted access to 59 records in full and granted partial access to the remaining 26 records with the redaction of third party personal information under section 37 of the FOI Act. The applicant sought an internal review of that decision and on 16 August the HSE affirmed its original decision. On 21 August 2018 the applicant sought a review by this Office of the HSE's decision. 

I have decided to bring this review to a close by way of a formal binding decision. In conducting the review I have had regard to the HSE's correspondence with the applicant as outlined above and to communications 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 concerned solely with whether the HSE was justified in redacting certain information from 26 records under section 37 of the FOI Act.  

Preliminary Matter

Before I address the substantive issues arising, I would like to make two preliminary points. Firstly, 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, the description I can give of the records and of the reasons for my decision are limited. 

Secondly, it is important to note that the release of a record under FOI is regarded, in essence, as release to the world at large as the Act imposes no constraints on the uses to which a record released under the Act may be put.

Analysis and Findings

The information redacted from the relevant records relates to a number of individuals including other family members, next of kin, an older child of the applicant who has reached the age of majority and a younger child of applicant who is still a minor.  

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), 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 known as joint personal information).

The FOI Act defines the term "personal information" as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. The definition also contains a list of 14 specific types of information that is personal information for the purposes of the Act. 

Having examined the redactions in question, I am satisfied that the information withheld is either the personal information relating to third parties or joint personal information relating to the applicant and third parties. I find, therefore, that section 37(1) applies. For the sake of clarity, I should add that this includes joint personal information relating to the applicant and her adult son. It also includes joint personal information relating to the applicant's minor son and other parties.

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. For the purposes of this review, and with reference to those circumstances, I am satisfied that, (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 that 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. 

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 find no basis for concluding that the grant of the request would benefit other individuals named in the records. I am therefore satisfied that section 37(5)(b) does not apply to the relevant records.

On the matter of whether section 37(5)(a) applies, I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individuals to whom the information relates.

The FOI Act acknowledges that there is a public interest in ensuring the openness and accountability of public bodies in the manner in which they perform their functions. On the other hand, the Act also recognises the public interest in the protection of the right to privacy, both in the language of section 37 and in the Long Title to the Act, which makes it 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 enhancing the transparency and accountability of the HSE has been served to some extent in this case by the release to the applicant of the vast majority of the information held in her mental health records. The question I must consider is whether the public interest in further enhancing that transparency and accountability outweighs, on balance, the privacy rights of the third parties to whom the information relates. Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find that it does not. I find, therefore, that section 37(5)(a) does not apply.

Section 37(8) 
Some of the redactions comprise personal information relating only to the applicant's minor son and/or joint personal information relating solely to the applicant and her son. The redactions in question are those set out in records 4 (all except for second sentence redacted), 7, 44, 46 ( all except for the first and fourth sentences redacted under heading 2), 47 (first redaction only), 50 (first line redacted only), 51 and 53 (all redactions except that on the first line).

The Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 provide for access by parents and guardians to records of minors and certain others. The Regulations, in accordance with section 37(8) of the FOI Act, provide for a right of access by parents or guardians to the personal information of individuals who, at the time of the request, have not attained full age, and where the release of the information would, in the opinion of the public body and having regard to all the circumstances, be in the child-™s best interests.

The Supreme Court held in the case ofMcK v. The Information Commissioner[2006] IESC 2, available atwww.oic.ie, that a parent is entitled to a rebuttable presumption that access to his or her child's medical information is in the best interests of the child. 

The Minister for Public Expenditure and Reform has published guidance in relation to access to records by parents under section 37(8) 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 guidance when performing their functions under the FOI Act. In particular, section 2.1(B) of the Minister's guidance lists the following as factors to be considered:

• would the minor consent to the release of the material?;
• would release of the material damage the minor in some way?; and
• are the records held in the minor's own right?

The guidance also suggests that, where appropriate, there should be a consultation with the minor concerned to establish his or her views on the release of his or her personal information to a parent. In the particular circumstances of this case, I do not consider it appropriate nor indeed feasible for this Office to consult with the minor concerned. 

The HSE, in correspondence with this Office, indicated that in its view, having regard to all the circumstances, the grant of the request would not be in the best interests of the child in question. It stated that this child is not in the custody of the applicant and it is the HSE's position that it would not be in their best interest if information relating to them was released. Having carefully considered the matter I cannot accept the HSE's position that release of the information I have identified above relating to the applicant's minor child to the applicant would not be in the child's best interest. In reaching this decision I am particularly influenced by the fact that the information at issue is not detailed information in relation to the child, but rather it relates to references to the child in the applicant's medical records and to the fact that the applicant is seeking custody of the child. Bearing in mind the presumption in favour of access by parents to information relating to their minor children I am not satisfied that the HSE has provided sufficient evidence to rebut this presumption and I therefore find that it was not justified in refusing the applicant access to information contained in the relevant records relating to her minor child.  

I therefore find that the HSE was not correct in refusing access to those parts of the records I have identified above under section 37(8) and I direct the release of that information.

Decision 

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE's refusal to grant the applicants' request under section 37 of the FOI Act. I find that it was not justified in redacting records 4 (except for second sentence redacted), 7, 44, 46 (except for the first and fourth sentences redacted under heading 2), 47 (first redaction only), 50 (first line redacted only), 51 and 53 (except for the redaction on the first line) and I direct the release of that information. I find that it was justified in refusing access to all other information redacted under section 37(1).

 
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