Whether the HSE was justified in its decision to refuse access to records relating to the applicant’s late aunt, under sections 11(4) and 37(1) of the FOI Act

26 August 2019

Background

In a request dated 2 April 2019, the applicant sought all records relating to her late aunt’s time at a named psychiatric hospital. On 3 May 2019, the HSE refused the request on the ground that the records sought were created before the relevant effective date of the FOI legislation. It also cited section 37(1) which serves to protect third party personal information. The applicant sought an internal review of that decision, in which she stated the she was one of her late aunt’s closest living relatives. On 4 June 2019, the HSE affirmed its decision to refuse the request. On 13 June 2019, the applicant sought a review by this Office of the HSE’s decision.

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 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 its decision to refuse the applicant’s request for records relating to her late aunt under sections 11(4) and 37(1) of the FOI Act.

Analysis and Findings

Section 37(1) of the Act provides for the mandatory refusal of a request where the public 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(1) is also subject to the other provisions of section 37.

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 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 Regulations define next of kin as

(a) issue,

(b) parent,

(c) brother or sister,

(d) a niece or nephew, or

(e) any other person standing nearest in blood relationship to the individual in

accordance with section 71(2) of the Succession Act 1965 (No.27 of 1965).

The Regulations provide that where two or more paragraphs apply, the paragraph that, alphabetically, is the first in order shall alone be regarded as being applicable. The Regulations also provide that, if two or more persons fall within that paragraph, each of them shall be regarded as next of kin of the particular individual.

In this case, the applicant stated in her request that her father was the last surviving member of the immediate family of her late aunt and that he has since died. Accordingly, the question of whether the applicant may be regarded as the next of kin of the deceased arises. However, the HSE made no reference to the 2016 Regulations in either decision. It is apparent that it did not consider whether a potential right of access might exist under the Regulations.

The HSE also cited section 11(4) as a basis for refusing the request. Section 11(4) provides that a right of access under the Act is normally restricted to records created on or after the effective date for the relevant body. The relevant date in the case of the HSE is 21 October 1998. However, section 11(5)(b) provides for a right of access to records created before the effective date where the records sought relate to personal information about the person seeking access to them.

Furthermore, Regulations were introduced in 1999 (the Freedom of Information Act, 1997 (Section 6(4)(b)) Regulations, 1999) which provide that requesters who are entitled to access records relating to a deceased individual pursuant to the Regulations made under section 28(6) of the FOI Act 1997 (now section 37(8) of the FOI Act 2014) may have a right of access to such records created prior to the effective date.

In other words, if the applicant has a right of access to records relating to her deceased aunt under the 2016 Regulations, the 1999 Regulations provide that access cannot be refused purely on the ground that the records were created before the effective date.

Having considered the HSE's decisions on the applicant's request and its submission to this Office, I find that it failed to consider the applicability of the 2016 Regulations in this case. 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) of the Act and the provisions of the 2016 Regulations. In doing so, I make no judgement as to the applicant’s status as next of kin under the regulations. This will need to be established to the HSE’s satisfaction during its reconsideration of the applicant’s 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