Whether the HSE was justified in refusing access, under section 37(1) of the Act, to records relating to the care of the applicant’s adult daughter held by the Child & Adolescent Mental Health Services

6 July 2021

Background

On 14 January 2020, the applicant made a request through her solicitor for access to all records relating to the care of her daughter held by the Child & Adolescent Mental Health Services (CAMHS). All references to communications with the applicant in this case should be taken to include communications with her solicitor.

In a late decision dated 29 September 2020, the HSE refused the applicant’s request under section 37(1) of the FOI Act on the ground that the records contain the personal information of her daughter. The decision maker stated that as the applicant’s daughter had reached the age of majority since the applicant made her request, the provisions of section 37(8)(a) of the Act and Statutory Instrument 218 of 2016 (which provide for a right of access, subject to certain conditions, by parents to the records of a minor) no longer apply. The HSE said the applicant’s daughter was entitled to seek access to the records in her own right.

On 27 October 2020, the applicant sought an internal review of the HSE’s decision, in which she agreed to limit the scope of the request to records for the three years prior to 12 June 2020. On 19 November 2020, the HSE affirmed its refusal of the request. On 18 February 2021, the applicant sought a review by this Office of HSE’s decision, wherein she drew attention to the fact that her daughter was a minor when the request was first made.

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 referred to above and to the submissions to this Office made by the applicant and the HSE. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with the question of whether the HSE was justified in refusing access, under section 37 of the Act, to the records of the applicant’s daughter held by the CAMHS.

Preliminary Matter

Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an 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. This means that I 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.

Analysis and Findings

Section 37 of the FOI Act is concerned with the protection of personal information relating to third parties. Subsection (1), which is subject to a number of other subsections, provides for the mandatory refusal of a request if the public body considers that access to the records sought would involve the disclosure of personal information. Subsection (1) does not apply where the information at issue relates to the requester (subsection (2)(a) refers).

For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information that 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".

Given the nature of the records sought as described above, I am satisfied that their disclosure would involve the disclosure of personal information relating to an individual other than the applicant and that subsection (1) applies. However, that is not the end of the matter as I must also consider the applicability of a number of other subsections.

Subsection (2)

Subsection (2) of section 37 sets out certain circumstances in which the exemption at subsection (1) does not apply. Subsection (2)(b) provides that subsection (1) does not apply if the individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester.

In her application for internal review, the applicant argued that the section 37(8) Regulations represent consent in “such other form as may be determined”. The Regulations in question, which I will consider separately below, provide for a right of access to personal information of a minor by parents and guardians in certain circumstances. I do not accept that the Regulations represent consent for the purposes of subsection (2)(b).

On the matter of consent, the HSE informed this Office that it did not receive the consent of the applicant’s daughter for the release of her records to the applicant. I should add that in its submission to this Office, it also expressed concerns about the appropriateness of asking the applicant’s daughter if she wished to provide consent. Furthermore, at no stage during this review did the applicant offer any evidence to suggest that her daughter consents to the release of her personal information to the applicant. I find therefore, that subsection (2)(b) does not apply. For the avoidance of doubt, I also find that subsections (c) to (e) do not apply in this case.

Subsection (5)

Subsection (5) provides that a request that would fall to be refused under subsection (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 request would benefit the person to whom the information relates.

In its submissions to this Office, the HSE said that following receipt of the request, the consultant who was treating the applicant’s daughter discussed the request with the applicant and informed her of an opinion that it was not in her daughter’s best interests to proceed with the request at that time. It said the consultant could not see what advantage it would serve the applicant’s daughter to have her records released at that time. It added that another consultant who was familiar with the case expressed the view that it would not be in the best interests of the applicant’s daughter for the records to be released and set out the basis on which the consultant held that view. Unfortunately, I cannot provide full details of the reasons given as I am required, under section 25(3) of the Act, to take all reasonable precautions during a review to prevent the disclosure of exempt matter. I note, in any event, that this Office’s Investigator invited the applicant to comment on the HSE’s submissions but no response has been received to date. In the circumstances, having regard to the HSE’s submission, 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 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. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. 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.

In relation to the issue of the public interest, it is also important to have 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 the strong 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 is also important to note at this stage that the release of information under the FOI Act 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. The information at issue in this case is of an inherently private nature. Having regard to the nature of the information at issue, I am aware of no public interest in granting access to the records sought that, on balance, outweighs the right to privacy of the applicant’s daughter. I find, therefore, that section 37(5)(a) does not apply.

Subsection (8) and the related Regulations

Subsection (8) of section 37 provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform may provide by regulations for the grant of a request where the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (the 2016 Regulations). They provide for a right of access by a parent or guardian to personal information of an individual who, on the date of the request, has not attained full age where access to the records would, having regard to all the circumstances, be in the individual’s best interests.

As I have outlined above, the applicant’s daughter attained full age during the processing of the request. In a number of previous cases where the individual whose personal information was at issue had attained full age before this Office had made its decision following review, we found that the 2016 Regulations were no longer of relevance. That approach was taken having regard to the de novo nature of reviews by this Office, which means that the review is based on the circumstances and the law as they pertain at the time of the Commissioner’s decision. It was also based on a view that the purpose of the Regulations is to provide for a right of access to records of a minor by the minor’s parents or guardians in certain circumstances, and not to records of an individual who is no longer a minor.

Having reconsidered the matter, I am satisfied that it is not appropriate to simply dismiss the relevance of the 2016 Regulations in such cases. The Regulations apply where the individual in question has not attained full age on the date of the request. As such, it seems to me that, provided the request was made by the parent or guardian before the individual had attained full age, the 2016 Regulations must be considered, notwithstanding the fact that the individual may have subsequently attained full age. However, I am satisfied that it is, indeed, appropriate to have regard to the fact that the individual is no longer a minor when considering whether the parent or guardian has a right of access to personal information relating to the individual.

As I have set out above, for a right of access to exist, the Regulations require that access to the records would, having regard to all the circumstances, be in the individual’s best interests. The issue to be decided, therefore, is whether the best interests of the applicant's now adult daughter will be served by the release to the applicant of those records disclosing her daughter’s personal information.

The Minister for Public Expenditure and Reform has published guidance in relation to access to records by parents under section 37(8) of the FOI Act (i.e. Central Policy Unit Notice 25, available on www.foi.gov.ie). Section 48(3) of the FOI Act provides that FOI bodies "shall have regard to" such guidance when performing their functions under the FOI Act. In particular, section 2.1(B) of the Minister's guidance lists the following as factors to be considered:

• whether the minor would consent to the release of the material,
• whether release of the material would damage the minor in some way, and
• whether the records are held in the minor's own right?

The guidance also suggests that, where appropriate, there should be a consultation with the minor concerned to establish his or her views on the release of his or her personal information to a parent. In the particular circumstances of this case, I do not consider it appropriate for this Office to consult with the applicants' daughter.

As I have outlined above, the HSE informed this Office that the consultant who treated the applicant’s daughter and another consultant who was familiar with the case expressed the view that it would not be in the best interests of the applicant’s daughter for her records to be released at this time. The applicant has presented no evidence to suggest otherwise. I have had regard to the fact that the records at issue are inherently private and that the applicant’s daughter is now an adult. In my view, both of these facts weigh in favour of protecting the individual’s privacy rights. I would add that while the Supreme Court held in the case of McK v. The Information Commissioner [2006] IESC 2 that a parent is entitled to a rebuttable presumption that access to his or her child's medical information is in the best interests of the child, it seems to me that this rebuttable presumption no longer applies in circumstances where the individual is no longer a minor.

Having carefully considered the matter and having regard to all the circumstances, I find that granting access to the records at issue would not be in the individual’s best interests and as such, that no right of access exists under the 2016 Regulations.

In conclusion, I find that the HSE was justified in refusing the applicant’s request for access to her daughter’s records under section 37(1) 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 to refuse access, under section 37(1) of the Act, to the records held by the CAMHS concerning the care of the applicant’s daughter.

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