Whether the HSE was justified, under section 37 of the Act, in refusing access to certain records held by the HSE relating to an incident involving the applicant’s brother while under the care of the Mental Health Services

5 March 2020

Background

In a request dated 14 June 2019, the applicant sought access, through his legal representatives, to all records held by the HSE’s Mental Health Services relating to his incapacitated adult brother. For the sake of convenience, all references to communications with the applicant in this decision should be taken to include communications with his legal representatives.

In a decision dated 6 August 2019, the HSE refused access to three pages of records it identified as coming within the scope of the request under sections 35 and 37 of the FOI Act.  The applicant sought an internal review of that decision on 14 August 2019 in which he clarified that his request was for records relating to an incident involving his brother while under the care of the Mental Health Services.

On16 September 2019, the HSE affirmed its decision to refuse the request under section 37.  On 8 November 2019, the applicant sought a review by this Office of the HSE’s decision.  During the course of the review, the HSE identified a further six pages which are also relevant to the request. 

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 set out above and to the correspondence 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. I have decided to conclude this review by way of a formal, binding decision. 

Scope of Review

This review is concerned solely with the question of whether the HSE was justified, under section 37 of the Act, in refusing access to certain records held by the HSE relating to an incident involving the applicant’s brother while under the care of the Mental Health Services.

Analysis and Findings

Section 37(1) of the FOI Act provides, subject to the other provisions of the section, for the mandatory refusal of a request where access to the records sought would involve the disclosure of personal information relating to an individual or individuals other than the requester.  The FOI Act defines the term "personal information" as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. The definition also contains a list of 14 specific types of information that is personal information, without prejudice to the foregoing definition, including information relating to the medical history of an individual.  I find that the release of the records at issue in this case would involve the disclosure of personal information relating to the applicant’s brother and that section 37(1) applies.

There are some circumstances, provided for at section 37(2), in which the exemptions at section 37(1) do not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of their 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) of the 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 benefit the person to whom the information relates.

On the matter of whether section 37(5)(b) applies, no argument has been made, nor is it evident from the records, that the grant of the request would benefit the individual to whom the information relates. I am satisfied that section 37(5)(b) does not apply in 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 recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they carry out their functions. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - both in the language of section 37 and in 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 is important to note that the release of records under the FOI is regarded, in effect, as release to the world at large, given that the Act imposes no constraints on the uses to which information released under the Act may be put. In the circumstances, and in light of the inherently sensitive nature of the information concerned, I find that section 37(5)(a) does not apply in this case.

For the sake of completeness, I have considered whether the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016) might apply in this case. The Regulations provide for a right of access by a parent or guardian to personal information relating to individuals who at the time of the request have, or are subject to, a psychiatric condition, mental incapacity or sever physical disability, the incidence and nature of which are certified by a registered medical practitioner and by reason of that condition, incapacity or disability, are incapable of exercising their rights under the Act. It is also a requirement that access to the individual’s records would be in his/her best interests.

However, the right of access to the records of such individuals does not extend to requesters solely on the grounds of their being regarded as the next of kin. The requester must be a parent or a guardian of the individual. The applicant has acknowledged that he is not his brother’s guardian. In the circumstances, I find that the applicant does not have a right of access to the records at issue under the Regulations.

In conclusion, therefore, I find that the HSE was justified in refusing the applicant’s request under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the HSE to refuse access, under section 37(1) of the FOI Act, to certain records held by the HSE relating to an incident involving the applicant’s brother while under the care of the Mental Health Services.

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