Whether the HSE was justified in its decision to redact certain information from the mental health records of the applicant-�s late husband under section 37(1) of the FOI Act

17 February 2020

Background

In a request dated 23 May 2019, the applicant, through her legal representatives, sought access to her late husband-�s medical records.  In July 2019, the HSE released some medical records to the applicant but these were incomplete. In a decision dated 15 August 2019, the HSE released the deceased-�s mental health records with some information redacted under section 37(1) of the FOI Act. On 22 August 2019, the applicant sought an internal review of the decision to withhold parts of the records. On 15 November 2019, the HSE issued its internal review decision, wherein it affirmed its original decision. On 19 November 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 carrying out 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.  I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by the HSE when processing the request.

Scope of Review

This review is concerned solely with whether the HSE was justified in its decision to redact certain information from pages 8, 9, 10, 29 and 33 of the mental health records of the applicant-�s late husband under section 37(1) of the FOI Act.

Preliminary Issues

It is important to note that, while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. This means that the description which I can give of the withheld information and of the reasons for my decision is somewhat limited.

Furthermore, section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse and FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded.

Analysis and Findings

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. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).

Section 2 of 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.

Having reviewed the records at issue, I am satisfied all of the withheld information is either personal information relating to individuals other than the deceased or the applicant, or personal information relating to the deceased and/or the applicant that is inextricably linked to the personal information of other individuals, i.e. joint personal information. In other words, the disclosure of any of the withheld information would also involve the disclosure of personal information relating to individuals other than the deceased or the applicant. Accordingly, I find that section 37(1) applies to such information. 

Section 37(2) sets out certain circumstances in which section 37(1) does not apply.  I am satisfied that none of those circumstances arise in respect of the information refused by the HSE. Furthermore, 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. 

As no evidence has been presented to this Office to suggest that the release of the withheld information would be to the benefit of the third parties concerned, I find that section 37(5)(b) does not apply.  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 transparency and accountability of public bodies in the manner in which they perform their functions. However, the FOI 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.

It seems to me that the public interest in promoting the transparency and accountability of the HSE has been served to a large extent by the release of the majority of the records to the applicant. The question I must consider, therefore, is whether the public interest in further enhancing that transparency and accountability outweighs, on balance, the significant public interest protecting the privacy rights of the third parties concerned.  Having regard to the nature of the information at issue, I am satisfied that it does not. In my view, the disclosure of the information would do little or nothing to further enhance the transparency or accountability of the HSE in respect of its dealings with the deceased. I am also particularly cognisant of the fact that release under FOI is, in effect, release to the world at large given that the Act places no constraints on the uses to which information released under FOI may be put. I find therefore, that section 37(5)(a) does not apply.

Therefore, I find that the HSE was justified in its decision to refuse access to the redacted information at issue under section 37 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 in this case. I find that the HSE was justified in its decision to redact certain information from pages 8, 9, 10, 29 and 33 of the mental health records of the applicant-�s late husband 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