Whether the HSE was justified, under section 37(1) of the Act, in refusing access to certain information contained in the applicant’s medical records

4 March 2021

Background

All references to the applicant in this decision can be taken to refer to the applicant and/or her solicitor, as appropriate. On 25 February 2020, the applicant submitted a request to the HSE for access to her up to date medical records from 5 March 2019.  On 25 March 2020, the HSE decided to part-grant the request.  It granted access to a number of pages of records in full, redacting a small amount of information from one page, a gynaecology summary, under section 37(1) on the ground that release of the information concerned would involve the disclosure of personal information relating to a third party.

On 8 May 2020, the applicant sought an internal review of that decision. She argued that, pursuant to the provisions of section 37(8), she was entitled to the redacted information if it related to one of her children. On 19 May 2020, the HSE issued its internal review decision, wherein it affirmed its original decision.  It also stated that the information at issue did not relate to any of her children.  On 26 November 2020, 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 conducting the 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 information at issue. 

Scope of the Review

The scope of this review is concerned solely with whether the HSE was justified, under section 37(1), in withholding certain information from a gynaecology summary report relating to the applicant.

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 if access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester.

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. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual.

A small amount of information was been withheld in this case. The information in question is part of an entry against a heading entitled “Significant Past History”. The redacted information relates to an individual other than the applicant. While I a required by section 25(3) to take precautions during a review to prevent the disclosure of exempt information, I believe I can appropriately describe the information as information that the applicant is likely to have provided to the relevant Hospital in the course of her care and treatment. However, the fact that a requester may be aware of the nature of the information or may have even provided the information to the body does not mean that it cannot be regarded as personal information relating to a third party for the purposes of the FOI Act. I am satisfied that the information at issue is personal information relating to an individual other than the applicant.

I would add that the information could also arguably be described as joint personal information relating both to the applicant and that individual, given the context in which the information is recorded. Nevertheless, section 37(7) provides for the mandatory refusal of 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.

I find that section 37(1) applies in this case on the ground that the disclosure of the information would involve the disclosure of personal information relating to an individual other than the applicant.

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 this case. Subsection (2)(b) provides that section 37(1) does not apply if the individual to whom the information relates consents to its disclosure to the requester. The HSE has already informed the applicant that the information does not relate to her children. In her application for review, the applicant argued that if the information relates to her husband, it should be released as he consents to the release of his personal information to her. As the information does not relate to the applicant’s husband, subsection (2)(b) does not apply.

Section 37(5) 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. It is not apparent to me that the release of the information at issue would benefit the third party concerned. I find, therefore, that section 37(5)(b) does not apply. 

On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, 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] 1 IR 729, [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.

Section 13(4) states that

“Subject to the provisions of the Act, in deciding whether to grant or refuse to grant a request under section 7 –

(a) any reason that the requester gives for the request, and
(b) any belief or opinion of the head as to what are the reasons of the requester for the request,

shall be disregarded"

Thus, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act. In relation to the question of the public interest, the reasons for a request are only relevant insofar as they reflect or overlap with what may be regarded as a "true" public interest.

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have also had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

Both 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). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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. 

Among other things, the applicant argued that the treatment she received from the Hospital fell short of an acceptable standard and that her health and wellbeing suffered as a result. She argued that by refusing access to the information at issue, the HSE refused to have regard to her statutory rights. She argued that here is a public interest in upholding the right of individuals to access their medical records, in knowing and understanding the nature of the treatment provided to them and the reasons for such treatment, and in promoting transparency in the provision of health services.

As I have outlined above, the Supreme Court held that the public interest in disclosure must be found from the scrutiny of the contents of the information at issue and there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of that information.

It is noteworthy that the HSE released the vast majority of the applicant’s medical records to her on foot of her request. The small amount of remaining information at issue is of an inherently private and sensitive nature relating to an individual other than the applicant. It is also important to note that the Act places no constraints on the uses to which the information contained in those records may be put. As such, the release of records under FOI must effectively, or at least potentially, be regarded as release to the world at large. In the circumstances, I find no relevant public interest in granting access to the withheld information that, on balance, outweighs the right to privacy of the individual to whom the information in question relates. I find therefore, that section 37(5)(a) does not apply.

Consequently, I find that the HSE was justified in refusing access to the withheld information under section 37(1).

Finally, while it can form no part of this decision, I would add that I can see no reason why the Hospital would not be in a position to consider a request by the applicant to view the information at issue outside of the FOI process, in light of the fact that it is most likely information she provided on the ground that it may be relevant to medical decisions on her care and treatment.

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, under section 37(1), to certain information contained in the applicant’s medical records.

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