Whether the Hospital was justified under section 37 of the Act in refusing to grant the applicant’s request for access to his late brother’s healthcare records

23 April 2020

Background

On 26 August 2019, the applicant made an FOI request to the Hospital for access to his late brother’s healthcare records for specified periods in 2019. In its decision of 10 September 2019, the Hospital refused to grant access to the records on the basis that they contain the deceased individual’s personal information and are exempt under section 37(1) of the FOI Act. On 20 September 2019, the applicant requested an internal review of the Hospital's decision on the basis that he meets the criteria as next of kin and requires the information to understand the deceased’s hospital stay. In its internal review decision of 2 October 2019, the Hospital affirmed its refusal of the request.

On 17 October 2019, the applicant sought a review by this Office of the Hospital’s decision. Both the applicant and the Hospital made submissions during the course of this review.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to correspondence between the applicant and the Hospital, to correspondence between the applicant and this Office, to correspondence between the Hospital and this Office, to the contents of the records at issue and to the provisions of the FOI Act.

Scope of the Review

This review is concerned solely with the question of whether the Hospital was justified in refusing the applicant's request for access to the healthcare records of his late brother under section 37 of the FOI Act and the regulations made under section 37(8) of the Act.

Preliminary Matters

Section 13(4) of the FOI 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.

Section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.

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 brother. 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 Hospital must consider the two potential possible ways in which the applicant may be entitled to access his late brother’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 to 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 Hospital 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 Hospital 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)

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. The records concern the medical history of the applicant's late brother including details of his care and treatment during the time he spent in the Hospital during 2019.  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 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.

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 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 brother. 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 dis-apply 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 Hospital was justified 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". In this case the Hospital has accepted that the applicant is the deceased’s brother and the next of kin for the purposes of the Regulations. 

When considering the Regulations, I must take into account Guidance that was published in May 2017 by the Minister for Public Expenditure and Reform under section 48(1) of the FOI Act. Section 3.2 of the Minister’s Guidelines list the following as factors to be considered:

• The confidentiality of personal information, as set out in section 37(1) of the FOI Act;
• Whether the deceased would have consented to the release of the records to the requester when living;
• Whether the person had outlined arrangements in his or her will or other instrument  in writing consenting to the release of personal records;
• Whether release would damage the good name and character of the deceased;
• The nature of the relationship of the requester to the deceased and the circumstances of their relationship before the deceased’s death;
• The nature of the records to be released;
• Whether the requester can get the information they want without accessing the records of the deceased;
• Any other relevant circumstances that the requester may set out.

The applicant states that his brother was a vulnerable person who lived in the family home all of his life. He states that his mother was made a Ward of Court and had to go into a nursing home and that his brother struggled with this. He states that when his mother passed away, his brother became the owner of the family home partly due to the benevolence of his brothers. The applicant states that his brother had felt aggrieved with his family members due to issues in relation to his mother’s care and that this situation was not helped by the interference of “third parties”.

The applicant states that when his brother became ill he did not inform the family. He makes several allegations in relation to the making of a will by the deceased which it would not be appropriate for me to set out here. He states that when the family learnt of his illness and went to see him there were no issues. The applicant states that he took his brother to a number of appointments and to the hospice. I note for clarity here that while it is evident from the records that the Hospital was notified of the death of the applicant’s brother in a hospice, the records of his care in the hospice are not within the scope of this review. The applicant states that he has already received certain GP and nursing notes which refer to his brother being estranged from his family. He argues that these references are being interpreted by the Hospital as meaning that his brother would not want his family to have his notes; however, he states that he was not estranged from his late brother and he was with him in his final days in the hospice. The applicant states that he has questions about this period and he requires his brother’s hospital notes to answer these questions.

The Hospital states that the records contain a number of entries which indicate that the deceased when living would not have consented to the release of his medical records to his family. It says that they contain inherently private and sensitive information, given by the deceased to clinical staff in confidence and for the purpose of assisting with his treatment and care, and on the understanding that they would be treated accordingly. The Hospital states that the applicant did not raise any issues with the standard of care. It considers his request to be more of a private than a public interest. The Hospital argues that, 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 refusing than by granting the request.

By making the relevant Regulations, the Oireachtas has determined that next of kin shall have a right of access to the records of deceased persons subject to consideration of the public interest and all the circumstances. 

On the matter of where the public interest lies and the factors to be considered, this Office generally has regard to the obiter comments of Macken J. in the Rotunda case (The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v the Information Commissioner [2011] 1 IR 729). 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. However, I must bear in mind that these comments were made in relation to the requirements of FOI legislation in general and not to the very specific and detailed provisions covering access by next of kin to medical records of deceased persons. The Regulations and guidance make it clear that a range of matters such as whether the deceased would have consented to the release of the records to the requester when living, the nature of the records to be released, and "any other relevant circumstances" must be considered. Therefore, matters which may be seen as private interests cannot be excluded solely on the basis that they are not public interest factors.

There is a public interest in ensuring transparency in the manner in which the Hospital carries out its functions and provides adequate care to patients, particularly vulnerable patients. While it is not evident in this case that the next of kin of the deceased person had concerns about the standard of care and treatment afforded to him, this does not mean that the public interest in transparency and accountability is lessened. Indeed, it could be argued that only by having all relevant information available could the next of kin of a deceased person draw informed conclusions as to the standard of care afforded. 

At the same time, I must also take account of the fact that the Regulations explicitly recognise a public interest in preserving the confidentiality of personal information. I am satisfied from my examination of them that the deceased's medical records contain his express wishes and indicate that he would not, when living,  have consented to the applicant having access to his records. I cannot go behind what is on the face of a record. I stress that this is not a finding that the applicant’s stated concerns are without any basis; however, as the applicant is aware, the Commissioner has no role in investigating allegations of wrongdoing. I find, having regard to particular circumstances of this case, that the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by refusing to grant the applicant's request, as the next of kin, for his late brother's healthcare records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Hospital's refusal to grant the applicant's request. 

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. 

 

Elizabeth Dolan

Senior Investigator