Whether the HSE was justified in refusing access to the medical records of the applicant’s deceased aunt under sections 35(1)(a) and 37(1) of the FOI Act

25 June 2021

Background

In a request dated 28 October 2020, the applicant sought access to all medical records in possession of a named hospital in relation to his aunt who died in September 2020. On 11 November the HSE wrote to the applicant and explained that there is no automatic right of access to the records of deceased persons. It explained that it would be considering various provisions of the act, including regulations that provide for the release of the records of deceased persons to certain categories of requester in certain circumstances. It provided details of documentation required to determine if the applicant was an appropriate person to whom the records might be released. It appears that the applicant had a telephone conversation with the HSE following receipt of that letter wherein he explained that we wanted to access the records for his personal perusal.

In a decision dated 14 December 2020, the HSE refused the request under sections 35(1)(a) and 37(1) of the FOI Act on the grounds that the records contained information given in confidence and contained personal information, including personal information relating to a deceased individual. It again provided details of documentation it required to determine if the applicant was an appropriate person to whom the records might be released.

On 17 December 2020, the applicant sought an internal review of the HSE’s decision, wherein he described himself as his late aunt’s next of kin. In its internal review decision of 20 January 2021, the HSE affirmed its refusal of the request. The internal reviewer referred to the relevant regulations that provide for the release of the records of deceased persons and determined that the public interest would not be better served by the release of the records. On 23 March 2021, the applicant sought a review by this Office for a review 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 correspondence between the applicant and the HSE as described above, and to the communications and correspondence between this Office and both the applicant and the HSE on the matter. 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 the applicant’s request for access to the medical records of his deceased aunt under sections 35(1)(a) and 37(1) of the FOI Act.

Analysis and Findings

Having regard to the nature of the information at issue, it appears to me that section 37 is of most relevance in this case. Accordingly, I will consider the applicability of section 37 in the first instance.

Section 37(1)

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.

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. Without prejudice to the generality of the foregoing definition, section 2 also lists 14 non-exhaustive examples of what must be considered to be personal information, including information relating to the medical history of the 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.

Section 37(2)

Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. Section 37(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 applicant provided a copy of an Advance Health Care Directive (AHCD) signed by his deceased aunt in 2014 in which she appointed the applicant and his mother as “co-agents” for all matters relating to her health care. He argued that the AHCD constituted consent from his deceased aunt to release her healthcare and medical records to him and to his mother, referring in particular to a paragraph in which his deceased aunt authorised him and his mother to “Request, review, and receive, to the extent I could do so individually, any information, verbal or written, regarding my physical or mental health, including, but not limited to, my individually identifiable health information or other medical records.”

Where a consent is provided to an FOI body, section 37(2) also provides that the FOI body must ensure that the consent of the individual is established to its satisfaction before the request is granted. The HSE was not satisfied that consent had been provided and argued that the AHCD provided only for the consent to medical treatment or withdrawal of treatment in situations where a patient became incapacitated. It seems to me that the purpose of an AHCD is to allow a nominated individual to make decisions on behalf of another individual about the type and nature of medical treatment to be provided to that individual. While this may require access to medical records while a person is alive in order to make informed decisions on that person’s behalf, it cannot, in my view, be regarded as the individual having consented to the release of his/her medical records after death, for the purposes of section 37(2) of the FOI Act. I am not satisfied that section 37(2)(b) applies in this case.

I am satisfied that none of the other circumstances provided for in section 37(2) arise in this case either, namely (a) the information contained in the records does not relate to the applicant; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I find that section 37(2) does not apply to the records sought.

Section 37(5)

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. I cannot see how the release of the information at issue could benefit the applicant’s deceased aunt and 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 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 had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5. 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 these comments of the Supreme Court 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.

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. It is also relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.

The applicant argued that his deceased aunt would have insisted on the records being released to him while she was alive and that therefore the public interest would be better served by granting the FOI request. The information at issue in this case is of an inherently private nature and I am cognisant of the fact that the release of a record under FOI effectively, or at least potentially, amounts to the disclosure of the record to the world at large. Whether or not she would have consented to the records being released to the applicant while she was alive, I do not accept that this is a public interest favouring release. I have identified no relevant public interest in granting access to the medical records of the applicant’s deceased aunt that, on balance, outweighs the public interest in upholding her privacy rights. In the circumstances, I find that section 37(5)(a) does not apply.

Section 37(8) and the 2016 Regulations

Section 37(8) provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform ("the Minister") may make regulations to provide for the grant of a request where the individual to whom the information relates is dead and the requester concerned is a member of a class specified in the regulations. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (the 2016 Regulations).

Under the 2016 Regulations, a request for access to a record which would involve the disclosure of personal information relating to a deceased individual shall be granted in certain circumstances. 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:

(i) 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,

(ii) 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, 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.

Next of Kin

The applicant submitted that he is the next of kin of his deceased aunt. For the purpose of the 2016 Regulations, next of kin is defined as:

(a) issue,

(b) parent,

(c) brother or sister,

(d) a niece or nephew, or

(e) any other person standing nearest in blood relationship to the individual in accordance with section 71 (2) of the Succession Act 1965.”

It is noteworthy that the 2016 Regulations provide for a right of access by the next of kin, as opposed to a next of kin. The 2016 Regulations, as amended, do not provide that all five categories of next of kin are entitled to be treated as the next of kin. Instead, they provide that where two or more of paragraphs (a) to (e) above would be applicable, the paragraph that, alphabetically, is the first in order shall alone be regarded as being applicable. In other words, a parent of the deceased may be regarded as the next of kin only where there are no surviving children or grandchildren (issue). Similarly, a brother or sister of the deceased may be regarded as the next of kin only where there are no surviving children or parents. As the nephew of the deceased, the applicant comes within paragraph (d) of the definition. If the deceased was survived by any individuals coming within any of the paragraphs (a) to (c), then the applicant cannot be regarded as the next of kin for the purposes of the 2016 Regulations.

In his request to the HSE, the included a hand-written note from a Peace Commissioner which stated that he is the “nephew (next of kin)” of his deceased aunt. In his submission to this Office, he said he was nominated as next of kin on his aunt’s medical file. Being nominated as next of kin in a medical record is not the same as qualifying as the next of kin for the purposes of the 2016 Regulations. In its submissions, the HSE noted that the deceased had a surviving sister. This was confirmed with the applicant by this Office; the applicant’s mother is his deceased aunt’s sister. While I note the applicant’s arguments that his mother is elderly and was not in a position to act as representative or advocate on her late sister’s behalf while she was alive, in accordance with the 2016 Regulations, the applicant is not the next of kin for FOI purposes. The applicant therefore cannot establish a right of access to the medical records as the next of kin of the deceased.

Personal Representative

The applicant also submitted that he is the personal representative of his deceased aunt and that the records should be released to him on that basis. It is the HSE’s position that it has not been provided with any evidence that the applicant is a personal representative of the deceased, nor  acting on the consent of a personal representative of the deceased, nor acting in due course of the administration of the estate.

It is noteworthy that it is not sufficient for a requester to show that he or she is the personal representative of a deceased person for a right of access to the records of the deceased person to apply. The 2016 Regulations also require that the personal representative is “acting in due course of administration of the individual’s estate”

While the applicant has submitted documentation in support of his contention that he is the personal representative of his deceased aunt, he has provided no evidence to show that he requires access to her medical records in the course of administering her estate, nor is it apparent to me that he would require access to the deceased’s medical records in the course of administering her estate. This, of itself, is sufficient for me to find that the applicant has not established a right of access to the records sought as a personal representative of the individual acting in due course of administration of the individual’s estate.

Conclusion

I find that the HSE was justified in deciding that the applicant does not have a right of access to the records sought pursuant to section 37(8) of the FOI Act and the 2016 Regulations. In conclusion, therefore, I find that the HSE was justified in refusing the applicant’s request for his late aunt’s medical records under section 37(1) of the FOI Act. Having found that section 37(1) applies, I do not need to consider the applicability of section 35(1)(a) to the records.

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 to the medical records of the applicant’s deceased aunt 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