Whether the Hospice was justified in refusing access to records relating to a deceased parent under the FOI Act

11 June 2021

Background

On 6 May 2021, the applicant made an FOI request to the Hospice for all records from 2020 relating to her deceased father. On 20 May 2021, the Hospice refused access to records, stating: “You are not the named primary contact/Next of Kin…You are referenced as his daughter within the notes, however, only named Next of Kin can apply under the Freedom of Information Act.” It did not issue a schedule of records. On 2 June 2021, the applicant applied to this Office for a review of the Hospice's decision. In conducting this review, I have had regard to the correspondence between the Hospice and the applicant as described above, as well to correspondence between this Office and both the applicant and the Hospice.

Scope of Review

The scope of this review is confined to whether or not the Hospice was justified in refusing access to the information sought under the FOI Act.

Preliminary Matters

I should note that section 22(12)(b) of the FOI Act provides that when I review a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Hospice to satisfy me that its decision is justified.

Analysis and Findings

The Hospice did not issue a schedule of records. The FOI Act does not require a schedule. However, scheduling of records is recognised as best practice, since it enables the applicant, decision-makers and any subsequent reviewers to see the nature and extent of the records within the scope of the request, whether they are to be released in whole or in part, as well as the exemptions, if any, being claimed. The Hospice does not appear to have conducted a record-by-record examination when deciding to refuse access to the information sought under the FOI Act. Internal correspondence provided to this Office indicates that the records concern a deceased individual and contain personal details involving named parties.

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. However, section 37(8) of the FOI Act provides that notwithstanding subsection (1), the Minister may provide by regulations for the grant of a request where the individual to whom the record concerned 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 (S.I. 218 of 2016) (“2016 Regulations”).  The 2016 Regulations provide for the grant of access to the records of a deceased individual if the requester is the spouse or the next of kin of the individual and 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 the request. The Minister for Public Expenditure and Reform has published guidance on the application of the 2016 Regulations (“Minister’s Guidance”), in accordance with section 48(1) of the FOI Act. Section 48(3) of the FOI Act requires FOI bodies to have regard to guidelines published by the Minister in the performance of their functions.

The applicant says that the person named as next of kin is not legally next of kin. She says that she and her sister are the next of kin of their deceased father. I note that the 2016 Regulations state that “next of kin” means: (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 (No.27 of 1965). The Minister’s Guidance says “In order to establish his or her claim to be the next of kin of the deceased, the requester would be required to submit an affidavit or other acceptable proof establishing the relationship and showing the necessary State Certificates.” Yet there is no evidence before me that the Hospice asked the applicant for any such evidence. It simply referred to the fact that its own medical notes did not name her as next of kin. The Hospice’s decision letter does not refer to section 37(8), the 2016 Regulations or the Minister’s Guidance. In fact, it does not refer to any provision of the FOI Act.

I do not consider that it is appropriate or feasible for the Commissioner to carry out the Hospice's role in making a first-instance decision under the FOI Act. In the circumstances, I have decided that the appropriate course of action is to annul the Hospice’s decision and direct it to conduct a fresh decision-making process in accordance with the FOI Act. I must emphasise that the fact that the applicant may be the daughter of the deceased individual concerned does not mean that she is automatically entitled to access any records. I make no finding on this. It is for the Hospice to apply section 37, the 2016 Regulations and the Minister’s Guidance, including consideration of the public interest in the confidentiality of personal information.

I will direct the Hospice to make a fresh decision no later than four weeks after the appeal period has expired. If it is necessary for the applicant to return to this Office on an application for review, I undertake to expedite any such review.

Decision

Having carried out a review under section 22(2) of the FOI Act, I annul the decision of the Hospice and direct it to undertake a fresh decision-making process in accordance with the FOI Act, having due regard to section 37(8), the 2016 Regulations and the Minister’s Guidance. I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Hospice to my decision within 20 working days of the expiration of the time for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) 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.

Deirdre McGoldrick

Senior Investigator