Whether the HSE was justified in refusing access to certain information relating to third parties contained in medical records relating to the death of the applicant’s mother at a named hospital under section 37 of the Act

30 September 2019

Background

On 21 January 2019, the applicant submitted a request to the HSE for information relating to the death of his mother at a named hospital.

On 14 May 2019, the applicant sought an internal review of the deemed refusal of his request on the ground that the HSE had not issued a decision within the required time-frame. On 11 June 2019, the HSE granted access to the deceased’s medical records, with the redaction of a small amount of information under section 37 of the FOI Act on the ground that the redacted information was personal information relating to third parties.

On 25 July 2019, the applicant forwarded to this Office an email that he had sent to the Central Policy Unit, Department of Public Expenditure and Reform, on 2 July 2019, wherein he expressed his concerns about the manner in which his request had been processed. He also suggested that there should be an independent investigation of his mother’s care and treatment up to the time of her death.

During the course of the review, Ms McCrory of this Office wrote to the applicant and explained that this Office has no role in reviewing clinical matters or in investigating the circumstances surrounding his mother’s death. She explained that our role is confined to reviewing the decision taken by the HSE on the applicant’s request for records. She suggested that the only FOI-related matter before her was the decision of the HSE to redact certain information from some of the records released. In response, the applicant stated that he wanted a review of the decision to redact the information in question. He also again raised concerns about the delay in processing this request.

I have decided to bring this review to a close by way of a formal binding decision. In conducting my review, I have had regard to the correspondence between the HSE and the applicant as outlined above and to correspondence between this Office and both the HSE and the applicant on the matter. In referring to the information at issue, I have adopted the numbering system used by the HSE in the schedule of records it prepared when processing the request.

Scope of the Review

The HSE made some minor redactions to pages 1, 23, 26, 41, 111 and 132 of the medical records of the deceased. Accordingly, this review is concerned solely with whether the HSE was justified in its decision to redact that information under section 37 of the FOI Act.

Preliminary Matters

I should explain at the outset that this review is being undertaken under section 22(2) of the FOI Act which means that it is confined to a review of the decision taken on the applicant’s request. The review is not concerned with procedural matters concerning the manner in which the request was processed. Nevertheless, I would note that there was a lengthy delay before the HSE issued its decision in this case. In its submission to this Office, the HSE stated that it made a number of attempts to contact the applicant to seek clarity on the scope of the request and to seek documentation to show that he was the next of kin. It stated that the applicant confirmed in April that he would be happy to proceed with the scope of the request being for all records held by the named hospital and that he furnished the necessary documentation required to satisfy the HSE that he was entitled to access the records as the next of kin.

Analysis and Findings

Section 37(1) of the FOI Act provides that a public body shall refuse to grant a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. For the purposes of the Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by an FOI body on the understanding that it would be treated by it as confidential.

I am satisfied that the information withheld in this case, notably names, addresses and contact details of parties other than the applicant or his late mother, is personal information relating to the individuals concerned and that section 37(1) applies.

Section 37 also contains a number of provisions that serve to disapply section 37(1). Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply, including where the individual concerned consents to disclosure. No such consent has been given in this case and I am satisfied that none of the other circumstances in section 37(2) apply in this case.

Section 37(5) provides that access to the personal information of a third party may be granted where (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 request would benefit the person to whom the information relates.

It has not been argued that releasing the information would benefit the persons to whom the information relates and I am satisfied that section 37(5)(b) does not apply in the circumstances. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

The FOI Act itself recognises the public interest in ensuring the transparency and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will 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.

The release of the withheld information in this case would not, in my view, serve to enhance the transparency or accountability of the HSE in in relation to its dealings with the applicant’s late mother. I find, therefore, that the public interest in granting the request does not, on balance, outweigh the public interest in protecting the right of privacy of the individuals to whom the information relates.

In conclusion, I find that the HSE was justified in withholding the information at issue under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to redact certain information contained in the medical file of the applicant’s late mother 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty

30 September 2019