Whether the HSE was justified in its decision to redact certain information from medical records relating to the applicant's late mother under section 37(1) of the FOI Act

25 June 2019

Background

In a request that the HSE received on 4 October 2018, the applicant sought access to certain medical records relating to her late mother. Given the location of the records, the HSE issued three separate decisions on the request. On 17 October 2018 it issued a decision in which it granted access in full to the relevant records held by a named Hospital.

On 31 October 2018 it issued a decision in relation to records held by the Safeguarding and Protection team (the safeguarding records) at a different hospital in which it granted access to the vast majority of the records, refused access to two records, and redacted certain information from eight records under sections 35 and 37 of the FOI Act. 

On 9 November 2018 the HSE issued a decision in relation to GP records. In relation to records held by Dr. A, it released 20 records, redacting a small amount of information from six records under section 37(1). In relation to records held by Dr. B, it released 31 records, redacting a small amount of information from two records. 

The HSE received an application for internal review of that decision on 20 November 2018. On 30 November 2018 the HSE issued its internal review decision in which it affirmed its original decision in relation to the GP records. The applicant sought an internal review of the decisions relating to the safeguarding records and to the records held by the GPs, following which the HSE affirmed both decisions.  

On 31 January 2019 the applicant sought a review by this Office of the decisions of the HSE in relation to the GP records and the safeguarding records. 

I have decided to bring this review to a close by way of a formal binding decision. In carrying out my review, I have had regard to the correspondence between the HSE and the applicant as described above and to the communications between this Office and both the applicant and the HSE on the matter. I have also had regard to the contents of the records at issue.

Scope of the Review

During the course of the review, the HSE said that a number of redactions had been made in error and that it would release the information previously redacted from pages 21, 49 and 50 of the safeguarding records. It also said it would release one of the phone numbers redacted from page 31 of those records as it is the applicant's mobile phone number. 

This review is therefore concerned solely with whether the HSE was justified in refusing access to the remaining redacted information from the following pages under section 37 of the FOI Act:

Records held by Dr A:  Pages 8, 9, 13, 16, 18 and 20
Records held by Dr. B: Pages 1 and 22
Safeguarding Records: Pages 1, 6, 7, 28, 30-32, and 35-37

Preliminary Matter

The applicant provided detailed submissions to this Office in which she outlined the background to a familial dispute and raised numerous issues that are outside the remit of this Office. The applicant also provided this Office with a list of questions she wished to be put to various individuals that were involved in the treatment of her late mother. Section 13(4) of the Act provides that any reasons a requester gives for making a request must be disregarded. This means that I cannot take account of the reasons why the applicant is seeking access to the information at issue.

Furthermore, this Office has no role in examining the administrative actions of the HSE. I cannot examine the appropriateness, or otherwise, of any actions taken by the HSE. My role is limited to determining whether the decision taken by the HSE on the applicant's FOI request for records was justified.

Analysis and Findings

In submissions to this Office, the HSE said it no longer wished to rely on section 35 to refuse access to the information redacted from pages 28 and 30 of the safeguarding records. Therefore, section 37 is now the sole exemption at issue. 

Section 37(1) 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 HSE redacted the names of the GP practice staff members from pages 8, 9, 13, 16, 18 and 20 of the records held by Dr. A under section 37(1). It said that the practice staff members are private employees of Dr. A's medical practice and are not HSE employees. 

The definition of personal information provides for the exclusion of certain information. The names of staff members of public bodies are excluded. However, certain information relating to service providers is also excluded.

The definition of personal information contained in section 2 of the Act does not include: 

(II) in a case where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service. 

Section 2 of the Act also defines a “service provider” as follows: 

“Service provider means a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI Body under a contract for services and contract for services includes an administrative arrangement between an FOI body and another person”

Under the Primary Care Reimbursement Scheme, Dr. A's GP practice is a service provider to the HSE. As the names of the staff members of Dr. A's practice appear in the records in this context, I find that the information redacted from pages 8, 9, 13, 16, 18 and 20 of the records held by Dr. A is not personal information for the purposes of the FOI Act and I direct the release of this information.

The HSE redacted a small amount of information from pages 1 and 22 of the records held by Dr B., comprising the names of individuals other than the applicant or her late mother. Having examined the information redacted from the safeguarding records, I am satisfied that it comprises either personal information relating solely to a third party or third parties, or personal information relating to the applicant and/or her late mother that is inextricably linked to personal information relating to a third party (i.e. joint personal information). I am satisfied that the release of any of the redacted information relating to the applicant and/or her late mother would also involve the disclosure of personal information relating to other individuals. I find, therefore, that section 37(1) applies.

In theory, one could extract certain words or phrases from the records which relate solely to the applicant or her late mother. However, those words and phrases appear in the context of other personal information relating to third parties. Section 18 of the FOI Act provides that if it is practicable, a request may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs.  Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent.  Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.  Having regard to section 18 of the FOI Act, I conclude that to provide the records with isolated words and phrases would be to provide misleading records. 

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 deceased; (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.

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. It has not been argued that releasing the records would benefit the third parties to whom the information relates. I find, therefore, 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 third parties 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 in its dealings with the deceased has been served to a large extent by the release of the vast majority of the information contained in the records at issue. The question I must consider is whether the public interest in further enhancing that transparency and accountability by releasing the redacted information outweighs, on balance, the privacy rights of the third parties to whom that information relates. Having regard to the nature of the information at issue and to the 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.

In conclusion I find that the HSE was justified in refusing access to the information redacted from the records at issue under section 37(1) apart from the redactions made to the records held by Dr. A.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the HSE. While I find that the HSE was justified in redacting certain information from the records held by Dr. B and from the safeguarding records under section 37(1) of the FOI Act, I find that it was not justified in redacting the names of the GP Practice staff members from pages 8, 9, 13, 16, 18 and 20 of the records held by Dr. A under section 37(1) and I direct release of this information. 

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