Whether the Hospital was justified in refusing, under section 37(1) of the FOI Act, the applicant’s request for access to his late mother’s medical records

27 May 2021

Background

In a request dated 18 May 2020, the applicant sought access to his late mother’s medical records. In particular, he requested access to:

“1. [His mother’s] Medical Records held on Paper and Electronic Means, including E.P.R. From 1st June 2019 – to – 31 December 2019.

2. Correspondence and Clinical Notes.

3. Any Procedures and Investigations, and Surgery’s [sic] and Consents etc…

4. Nursing Notes, Cardex, and Prescription Sheets, Medications Prescribed and Administered for Inpatient and Outpatients etc…

5. Any X-Ray, CT, MRI, Ultrasound and Radiology Reports and Laboratory and Blood Tests and Cardiology Tests and Results”.

In a response to the applicant dated 2 October 2020, the Hospital indicated that it had identified a previous request made by the applicant on 27 September 2019, which had been refused by the Hospital by way of letter dated 10 January 2020. The basis for this refusal, according to the Hospital, was that release of the records would involve the disclosure of personal information, and information that is held by an FOI body on the understanding that that it would be treated as confidential. In its correspondence, the Hospital referred to sections 31(1) and (2) of the FOI Act; however, this Office understands this to be a reference to sections 37(1) (which relates to the disclosure of personal information) and 35(1) (which relates to the disclosure of information that is held by an FOI body on the understanding that it would be treated as confidential) of the Act. The Hospital further stated that, as the applicant’s request of 18 May 2020 was, in its view, for access to the same information as he had previously requested on 27 September 2019, the decision had been made to uphold its refusal of the request, as outlined in its letter of 10 January 2020.

On 7 October 2020, the applicant requested an internal review of the Hospital’s decision, in the course of which he advised that he had not received notification of the decision on his request of 27 September 2019 until he made his subsequent request on 18 May 2020.

On 4 January 2021, the Hospital affirmed its original decision. In this correspondence, the Hospital indicated that its refusal of his request was on the basis of section 37(1) of the FOI Act. On 26 February 2021, the applicant sought a review by this Office of the Hospital’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 application for review and the submissions made by the Hospital. I have also examined the records at issue. I have now 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 Hospital was justified in refusing access, under section 37(1) of the Act, to the medical records of the applicant’s deceased mother. For the avoidance of doubt, the review is concerned with the applicant’s request of 18 May 2020. The applicant’s first request of 27 September 2019, and the issue of whether or not a decision issued to him in response to that request, is not within the scope of this review.

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 I am constrained in this case from providing a fuller explanation for my findings than that set out below.

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. 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

In its submissions to this Office, the Hospital indicated that it was relying on subsection 37(1) of the FOI Act as a basis for its refusal to grant access to the record. Section 37(1) of the Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record would involve the disclosure of personal information, including personal information relating to a deceased individual. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester. Under section 37(1), personal information cannot be released unless one of the other relevant provisions of section 37 applies.

Given the nature of the records at issue, I am satisfied that their release would involve the disclosure of personal information relating to an individual other than the applicant and that section 37(1) applies. However, that is not the end of the matter as subsection (1) is subject to the other provisions of section 37.

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) applies in this case.

Section 37(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 the particular circumstances of this case, 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 that there is a public interest in promoting openness and accountability of public bodies in the performance of their functions. On the other hand, however, 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.  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 at this stage that the release of information under the FOI Act is, in effect, release to the world at large given that the Act imposes no constraints on the uses to which information released under FOI may be put. Therefore, while I can take account of the applicant’s status as the next of kin of the deceased when considering the applicability of Statutory Instrument 218/2016 (examined below), I cannot do so when considering the applicability of section 37(5)(a).

The information at issue in this case is of an inherently private nature. Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find that the public interest in granting access to the records does not, on balance, outweigh the right to privacy of the deceased. I find, therefore, that section 37(5)(a) does not apply.

Statutory Instrument 218/2016 (the 2016 Regulations)

Section 37(8) of the Act provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform may provide by regulations for the grant of an FOI request where:

“(b) the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations”.

It should be noted that such regulations have indeed been made, namely the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (the Regulations). Among other things, they provide that notwithstanding section 37(1), a request may be made for records which involves the disclosure of personal information relating to a deceased individual and shall, subject to the other provisions of the FOI Act 2014, be granted, where

“(a) the requester concerned belongs to one or other of the following classes:

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,
a person on whom a function is conferred by law in relation to the individual or his or her estate acting in the course of the performance of the function, or

(b) the requester is the spouse or the next of kin of the individual and, in the opinion of the head [of the relevant FOI body], having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request”.

It should be noted that, in his correspondence with the Hospital and with this Office, the applicant identified himself as the next of kin and the personal representative of his late mother. The Hospital does not appear to dispute that for the purposes of the Regulations, the applicant is the next of kin of the deceased, as her son. As such, the question I must consider is whether, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request.

In its submissions to this Office, the Hospital stated that it had considered the public interest test and had concluded that, on balance, the public interest was better served by withholding, rather than granting, access to the record. In support of this argument, the Hospital highlighted certain information contained in the record which it indicated had influenced its decision in this regard. Having examined the records at issue, I am satisfied that the Hospital was justified in arriving at that conclusion. In so finding, I have had regard to guidance published by the Minister for Public Expenditure and Reform on access to records relating to deceased persons, under section 37(8) of the FOI Act. This guidance refers to factors to be taken into consideration in deciding if release is appropriate to the next of kin. Factors referred to in the guidance include:

• the confidentiality of personal information - would the deceased have consented to the release of the records to the requester when living?
• has the person outlined arrangements in his or her will or other instrument in writing consenting to release of personal records?
• would the release damage the good name and character of the deceased?
•  the nature of the relationship of the requester to the deceased and the circumstances of the relationship prior to the death of the deceased
• the nature of the records to be released - can the requester obtain the information they seek without accessing the records of the deceased?
• any other circumstances relevant to the request as set out by the requester.

 As outlined above (under the heading ‘Preliminary Issues’), under section 25(3) of the Act I am required to take all reasonable precautions to prevent the disclosure of material that would be exempt under the FOI Act. As such, I am constrained in relation to the amount of detail I can give regarding the Hospital’s arguments. It must suffice for me to state that, upon a review of the contents of the record, in light of the aforementioned guidance issued by the Minister, and in light of the submissions made by the applicant and by the Hospital, I am satisfied that the public interest in this instance is better served, on balance, by the withholding rather than the granting of access to the record.

I find therefore, that the Hospital was justified in finding that the applicant does not have a right of access to the records at issue under the 2016 Regulations as the next of kin of the deceased.

For the sake of completeness, I would like to comment on the applicant’s claim, as set out in his correspondence to both the Hospital and this Office, that he also has an entitlement under the Regulations to be granted access to the record at issue on the basis that he is the personal representative of his late mother.

Upon the commencement of this review this Office sought information from the Hospital as to whether it had sought or received any supporting documentation from the applicant to support his contention that he was the personal representative of his late mother for the purposes of the 2016 Regulations. In its subsequent submissions, the Hospital stated that no documentation was provided by the applicant to the Hospital to support his assertion in this regard. The applicant similarly provided no documentation to this Office to support his claim. As such, I have not considered whether or not he has a right of access as the personal representative of his late mother. If the applicant believes that he has a right of access to the records sought as the personal representative of the deceased, it is open to him to submit a fresh request to the Hospital along with any evidence he has to support his claim.  The applicant should note however, that even if he is the personal representative of his late mother, under the 2016 Regulations he must also be acting in due course of administration of the deceased’s estate for a right of access to exist.

In conclusion, I find that the Hospital was justified in refusing the applicant’s request for access to his late mother’s medical 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 Hospital in this case. I find that the Hospital was justified in its decision to refuse access to medical records belonging to the applicant’s late mother 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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

 

Stephen Rafferty

Senior Investigator