Whether the Hospital was justified in redacting, under section 37 of the FOI Act, the age and address of the applicant’s grandmother from a delivery ward record relating to her

9 July 2021

Background

In a request dated 12 February 2021, the applicant sought information relating to his late grandmother, who gave birth to his mother in the Hospital in 1915. He provided his mother’s name and date of birth and his grandmother’s name. On 25 February 2021, the Hospital provided the applicant with a copy of a delivery ward record with the redaction of his grandmother’s age and address under section 37(1) of the FOI Act.

On 3 March 2021, the applicant sought an internal review of that decision following which the Hospital affirmed the decision to redact the record. On 12 April 2021, the applicant sought a review by this Office for a review 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 the correspondence between the applicant and the Hospital and to the correspondence between this Office and both parties on the matter. I have also examined the record at issue and have had regard to the content of the record concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of this Review

My review is solely concerned with whether the Hospital was justified in redacting, under section 37 of the FOI Act, the age and address of the applicant’s grandmother from the relevant delivery ward record.

Preliminary Matter

Before considering the exemption cited in support of refusal of the information at issue, I wish to note that section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.

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 relating to an individual other than the requester, including personal information relating to a deceased individual. I am satisfied that the disclosure of the information at issue in this case would involve the disclosure of personal information relating to an individual other than the applicant and I find that section 37(1) applies.

Section 37(2) of the Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case, namely (a) the information contained in the records does not relate solely to the applicant; (b) the third party has not consented to the release of that information; (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. 

Section 37(5) provides that access to the personal information relating to a third party may 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.  As no evidence has been presented to this Office to suggest that the release of the information at issue would benefit the applicant’s late grandmother, I find 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.

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 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.

Having regard to the nature of the information at issue, I am aware of no public interest factors in favour of the release of the specific redacted information that, on balance, outweigh the right to privacy of the individual to whom the information relates.  While I appreciate that access to the information at issue would be of importance to the applicant in his quest for information to complete his family tree, his interest in obtaining access to the information is essentially a private rather than a public interest.

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 as the Act places no constraints on the uses to which such records may be put.  In the circumstances, I find that the public interest in granting access to the information sought does not, on balance, outweigh the significant public interest in protecting the privacy rights of the applicant’s late Grandmother.  I find that section 37(5)(a) does not apply.

For the sake of completeness, I have also considered the applicability of the regulations made under section 37(8) of the Act. Section 37(8) provides that notwithstanding subsection (1), the Minister for Public Expenditure and Reform may provide by regulations for the grant of an FOI request, where the individual to whom the record concerned is deceased and the requester 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, S.I. No. 218/2016 (the Regulations).

Among other things, the Regulations 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 Act, be granted, where the requester is the spouse or the next of kin of the individual and, having regard to all the circumstances, the public interest would, on balance, be better served by granting than by refusing to grant the request.

In his communications with this Office, the applicant confirmed that he is not the next of kin. As such, I find that the applicant has not established a right of access to the records sought under section 37(8).

In conclusion, therefore, I find that the Hospital was justified, under section 37(1) of the Act, in redacting the age and address of the applicant’s grandmother from the relevant record.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the Hospital's decision to redact, under section 37 of the FOI Act, the age and address of the applicant’s grandmother from the relevant delivery ward record.

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