X & Y c/o ABC Solicitors and Health Service Executive [2021] IEIC 102154 (6 April 2021)

Whether the HSE was justified in refusing access to the medical records of a deceased individual under section 37(1) of the FOI Act

6 April 2021

Background

In a request dated 7 September 2019, the applicants, through their legal representatives, sought access to the medical records of a deceased individual. The deceased individual had been a neighbour of the applicants prior to her death. The correspondence indicated that the applicants were the personal representatives of the deceased individual and that access to the medical records was required to prove the will of the deceased so that the estate of the individual could be distributed.

In a decision dated 2 March 2020 the HSE refused the request on the ground that the applicants were not entitled to access the records under the Regulations made by the Minister for Public Expenditure and Reform under section 37(8) of the FOI Act which provide for access by certain third parties to records of a deceased individual. On 7 September 2020, the applicants sought an internal review of that decision, following which the HSE affirmed the original decision. On 7 January 2021, the applicants sought a review by this Office of the HSE’s decision.

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 HSE, to the correspondence between this Office and both the applicant and the HSE on the matter, and to the contents of the records at issue.

Scope of the Review

This review is concerned solely with the question of whether the HSE was justified in refusing the applicants' request for access to the medical records of a deceased individual.

Analysis and Findings

Section 37(1) of the FOI Act 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, including personal information relating to a deceased individual. The records at issue comprise the medical records of the deceased. As such, I am satisfied that their release would involve the disclosure of personal information relating to the deceased and that section 37(1) applies.

However, under subsection (8), Regulations have been made by the Minister for Public Expenditure and Reform (the Minister) which provide for access by certain third parties to records of a deceased individual. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 as amended (S.I. 218 of 2016). At relevant part, they provide, notwithstanding section 37(1), for the grant of access to the records of a deceased individual to certain classes of individuals, including a personal representative of the individual acting in due course of administration of the individual's estate, or any person acting with the consent of a personal representative so acting.

In accordance with section 48(1) of the Act, the Minister has published guidance concerning access to records relating to deceased persons pursuant to S.I. 218 of 2016. Under section 48(3) public bodies must have regard to such guidance in the performance of their functions under the Act. The guidance states that the personal representative has the same right of access as the deceased person enjoyed when living, in respect of records relating to the performance of the functions specified in the regulations.

The guidance provides that the class concerning a personal representative of the deceased covers only people who have taken out a grant of probate in cases of testacy and does not include a will where a grant of probate has not been taken out, i.e. with an unproven will. It further provides that as release of records for the administration of the estate will readily apply to this class of requester the steps the public body should take include the following:

“Require the requester to produce the original or Probate office copy of the Grant of Probate or Administration;
Have the requester confirm that, where the grant of Probate is limited, it is still in full force and effect;
Evidence of identity of the requester to confirm that he/she is the person named in the Grant;
Check that the grant covers the class of records to which access is being sought i.e. if the grant is limited to the personal estate of the deceased it would not cover records relating to the real estate or other personal affairs of the deceased not related to administration of the estate;
Be satisfied that the records sought are required for the administration of the estate e.g. records relating to land, property, finance, pensions, social welfare payments, grants, etc. In the normal course of administration, the personal representative would not require access to sensitive medical records or such like…”

In the course of correspondence with this Office the applicants’ legal representatives provided a copy of the will of the deceased individual wherein the applicants were identified as executor and executrix respectively of the estate of the deceased. They also provided a copy of the death certificate of the deceased wherein the cause of death was identified as ‘Dementia – Alzheimer’s Type’. They indicated that no grant of probate had issued in relation to the estate of the deceased individual.

In particular, the legal representatives indicated that in cases where dementia or other ‘diseases of the mind’ are recorded on the death certificate of an individual, the Probate Office requires an Affidavit of Mental Capacity confirming that the deceased had the cognitive ability to make a will at the date of signature of that will. They further indicated that they have been unable to obtain such an affidavit from a doctor and therefore are seeking access to the medical records of the deceased individual so that they may be exhibited in court to allow for a determination to be made in relation to the deceased’s cognitive ability at the time of the making of the will.

The HSE reiterated its position that the Regulations and associated guidance published by the Minister relating to records of deceased individuals is clear in stating that the class concerning a personal representative of the deceased covers only people who have taken out a grant of probate in cases of testacy. The HSE argued that the absence of such a grant in the current case meant that it had no option other than to refuse the applicants’ request.

Having considered the matter, it seems to me that the key question in this case is whether the applicants can reasonably be regarded as requiring access to the medical records of the deceased for the purpose of acting in due course of administration of the individual’s estate. In my view, they cannot.

A grant of probate, issued by the Probate Office of the High Court, gives lawful authority for a person to administer the deceased person's estate. As such, it seems to me that the guidance published by the Minister reasonably and appropriately requires that to be regarded as a personal representative of the individual acting in due course of administration of the individual's estate, only people who have taken out a grant of probate in cases of testacy are included. In the circumstances of this case, I find that the HSE was justified in deciding that the applicants do not have a right of access to the records sought pursuant to S.I 218 of 2016.

Accordingly, I find that section 37(1) applies to the records sought. Section 37(2) sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances apply in this case. 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.

I am satisfied that the release of the information at issue would not benefit the individual concerned and that section 37(5)(b) does not apply. 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.

In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 57, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”.

Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave 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 Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

The FOI Act 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. Moreover, unlike other public interest tests provided for in the FOI Act, there is 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.

The records at issue in this case are of an inherently private and sensitive nature. Furthermore, it is important to note that the release of a record under the FOI Act is, in effect, regarded, as release to the world at large, given that the Act places no constraints on the potential uses to which released records may be put. In the circumstances, I know of no public interest factors in favour of the release of the records that would, on balance, outweigh the privacy rights of individual concerned. I find, therefore, that the public interest in granting the request does not outweigh the right to privacy of the individual to whom the information relates and that the HSE was justified in refusing the request under section 37(1).

Decision

Having carried out a review under Section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse the applicants’ request for access to the medical records of a deceased individual 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

Senior Investigator