Whether the HSE was justified in refusing access to the medical records, scans and reports of the applicant’s late son under section 37(1) of the FOI Act

21 October 2019

Background

In a request dated 7 March 2019, the applicant sought access to all medical records relating to her late son on the basis that she was his next of kin. As the HSE failed to issue a decision on her request within the required statutory timeframe, the applicant sought an internal review of the deemed refusal of her request on 24 April 2019.

In its internal review decision that was dated 31 May 2019, the HSE refused the applicant’s request under section 37(1) of the FOI Act on the ground that the records sought comprised personal information relating to her late son and that she was not the next of kin for the purposes of the Act. It informed the applicant that if her son’s wife, or his children as next of kin, made a fresh request or if they provided the applicant with explicit consent to access the records, it would consider such a request. On 2 July 2019 the applicant applied to this Office for a review of the HSE’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the correspondence between the applicant and the HSE as outlined above. I have also had regard to the correspondence between this Office and both the applicant and the HSE on the matter. 

Scope of Review

This review is solely concerned with whether the HSE was justified in refusing the applicant’s request for access to the medical records for her late son under section 37 of the FOI Act and the regulations made under section 37(8) of the Act.

Preliminary Matters

Before explaining my analysis and findings on this review, I would like to offer my condolences to the applicant on the death of her son. I know that she has serious concerns about the level and quality of treatment and care afforded to her son before his death and I note that she has indicated she requires her son’s medical records in order to support a complaint she made on the matter.

It is important to state at the outset that this Office has no role in examining the actions of the HSE or its staff in the performance of their functions. Our role is confined to reviewing the decision taken by the HSE on the applicant’s FOI request.

It is also important to state that 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 records at issue, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the records where the Act requires a consideration of the public interest.

Analysis and findings

Given the nature of the records sought in this case, it is clear that their release would involve the disclosure of personal information relating to the applicant's late son. Subject to certain exceptions, section 37(1) of the FOI Act provides that a public body must generally refuse a request where access to the records sought would involve the disclosure of personal information relating to an individual (including a deceased individual) other than the requester. Such exceptions are provided for in subsections (2) and (5) of section 37.

Furthermore, under subsection (8), the Minister may provide by regulation for the grant of a request where “the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations”. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 as amended (the 2016 Regulations).

In essence, the HSE must consider the two potential possible ways in which the applicant may be entitled to access her late son’s records. Firstly, it must consider whether one or more of the exceptions provided for in subsection (2) and (5) serve to disapply the exemption in subsection (1). In considering those exceptions, the applicant’s relationship to the individual about whom the information relates is irrelevant. 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.

However, the HSE must also consider whether the applicant is entitled to access the records under the 2016 Regulations as a member of a class specified therein. For the purposes of this decision I will first consider whether the HSE was justified in refusing the request under section 37(1) and if I find that it was, I will go on to consider whether it was justified in refusing the request on the ground that the 2016 Regulations do not provide for a right of access to the records.

Section 37(1)

As I have outlined above, 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 relating to an individual other than the requester. Given the nature of the records sought, I find that section 37(1) applies in this case.

Section 37(2)

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 party has 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. I find that section 37(2) does not apply to the withheld information.

Section 37(5)

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 section 37(5)(b) does not apply in the circumstances of this case. 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 person 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. However, the Act also 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. 

Given the inherently private nature of the information sought and having regard to the fact that the release under FOI is, in essence, release to the world at large, I am satisfied that the public interest in granting access to the information sought does not, on balance, outweigh the significant public interest in protecting the privacy rights of the applicant’s late son.  I find therefore, that section 37(5)(a) does not apply.

In conclusion, therefore, I find that none of the exceptions in subsections (2) and (5) serve to disapply section 37(1) in this case. However, as I have indicated above that is not the end of the matter. I will now consider whether the HSE was justified in in refusing the request on the ground that the 2016 Regulations do not provide for a right of access to the records.

The 2016 Regulations

The 2016 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".

It is important to note that the Regulations do not provide for a right of access by all next of kin. For the purpose of the Regulations, next of kin is defined 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.

However, the Regulations do not provide that all five categories of next of kin are entitled to be treated as the next of kin. Instead, they provide that the definition shall operate so that, where more than one paragraph of it is applicable in a given case, the person falling within whichever paragraph is numerically the lowest shall alone be regarded as the next of kin of the individual concerned. In other words, a parent of the deceased may be regarded as the next of kin only where there are no surviving children. Similarly, a brother or sister of the deceased may be regarded as the next of kin only where there are no surviving children or parents.

The HSE has indicated that the deceased is survived by his sons. Consequently, the deceased’s sons are the next of kin within the meaning of the Regulations, not the applicant. I find, therefore, that the HSE was justified in refusing the applicant’s request on the ground that the 2016 Regulations do not provide for a right of access to the records.

In conclusion, therefore, I find that the HSE was justified in refusing the applicant’s request for access to the medical records of her late son under section 37(1) of the FOI Act. However, I would again draw the applicant’s attention to the HSE’s statement that it would consider a fresh request if her son’s wife and his children provided the applicant with explicit consent to access the records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse access to the medical records, scans and reports of the applicant’s late son under section 37(1) of the FOI Act.

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