Whether the HSE was justified in refusing the applicant’s request for access to his medical records under section 15(1)(i) of the FOI Act on the ground that the records sought were previously released to him

13 September 2021

Background

This review has its background in a previous FOI request (FOI/2019/09/04) the applicant made to the HSE in 2019, on foot of which he was provided with his medical file records, some of which were redacted under section 37 of the Act (third party personal information). The applicant sought an internal review of the HSE’s decision on 19 May 2020, but the HSE refused to accept the application as was outside the six-month time-frame set out in the Act.

On 12 April 20212, the applicant submitted a fresh two-part request. At part (a), he sought a copy of his medical records from St Loman’s and St. James’ Hospitals between 7 March 1993 and 22 March 1993. At part (b), he sought copies of “all medical records … from The Central Mental Hospital Dundrum, to St Loman’s Hospital” between 10 August 1994 to 15 September 1994, that included his name and address. In its decision of 12 May 2021, the HSE refused part (a) under section 15(1)(i) of the Act on the ground that the records had already been released to him on foot of request FOI/2019/09/04 and it part-granted part (b) of the request, providing him with two records that included redactions under section 37. 

On 17 May 2021, the applicant sought an internal review of that decision, following which the HSE affirmed its decision on respect of part (a) but annulled its decision in respect of part (b) and provided him with full access to the two records that had previously been released in part. On 28 June 2021, the applicant sought a review by this Office the HSE’s decision.

I have now completed my review in this case. In conducting the review, I have had regard to the correspondence between the HSE and the applicant as set out above, and to the correspondence between this Office and both the HSE and the applicant on the matter.

Scope of the Review

In his correspondence with this Office, the applicant gave no indication of what aspects of the HSE’s decision he was not satisfied with. As the HSE’s position is that it has granted part (b) of the request in full and the applicant has identified no issue with same, I do not propose to consider that part further.

Accordingly, this review is solely concerned with whether the HSE was justified in refusing part (a) of the applicant’s request under section 15(1)(i) of the FOI Act on the ground that the records sought had previously been released to him on foot of his earlier request.

Analysis and Findings

Section 15(1)(i) of the FOI Act allows an FOI body to refuse to grant a request where the request relates to records already released, either to the same or a previous requester, where the records are available to the requester concerned. In its submission to this Office, the HSE said that part (a) of the request was for the same records that were released to the applicant on foot of request FOI/2019/09/04. However, it also confirmed that certain information was withheld from a number of the records that were released in 2019, under section 37 of the Act, on the ground that the redacted information comprised personal information relating to third parties or joint personal information relating to the applicant and other parties.

The purpose of section 15(1)(i) is to negate the need for public bodies to provide additional copies of records that have already been released and are available to the requester. It seems to me that the HSE cannot rely on section 15(1)(i) to refuse access to those records that were not released to him in full in the earlier request, as the withheld parts of those records cannot be said to be available to him. Accordingly, I find that the HSE was not justified in refusing part (a) of the applicant’s request in its entirety under section 15(1)(i), in circumstances where some of the records previously released were not released in full.

However, I do not consider it appropriate to simply direct the release of the records, given its initial reasons for withholding certain parts of the records. Instead, I find that the most appropriate course of action is to annul the HSE’s decision relating to part (a) of the request and to direct it to conduct a new decision-making process on that part. The normal rights of internal review and appeal to this Office will apply to the new decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the HSE in respect of part (a) of the applicants request for his medical records and direct the HSE to undertake a new decision making process in respect of that part.

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