Whether the HSE was justified in refusing access, under section 37(1) of the FOI Act, to records relating to the applicant-™s late husband

26 September 2022

Background

In a request dated 29 March 2022, the applicant sought access to records held by the HSE in relation to her late husband.  In a decision dated 13 April 2022, the HSE refused the request, citing section 37 of the Act as the basis for its decision, as well as the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (the 2016 Regulations). On 24 April 2022, the applicant sought an internal review of the HSE-™s decision. In its internal review decision dated 4 May 2022, the HSE affirmed its original decision. On 6 May 2022, the applicant applied to 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 carrying out my review, I have had regard to the submissions made by the applicant and the HSE. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is solely concerned with whether the HSE was justified in refusing access to the records sought by the applicant under section 37(1) of the Act and the 2016 Regulations.

Preliminary Matters

Before setting out my findings, there are some preliminary points I wish to make. The first point to note is that section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that an applicant's motivation cannot be considered, except insofar as it might be relevant to the consideration of public interest provisions.

In addition, I should point out that, while I am required by section 22(10) of the Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. This means that the extent of the reasons that I can give in relation to certain aspects of this decision is limited.                                       

Analysis and Findings

Section 37(1)

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 -œthere 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 relationship to the deceased when considering the applicability of the 2016 Regulations (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.

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:

-œ(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-.

Such regulations have indeed been made, namely the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016. 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

-œ(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 is not disputed that the applicant is the spouse of the deceased. She therefore falls within the category of persons set out in paragraph (b) of the Regulations (above) to whom personal information relating to a deceased individual may be released, where the public interest would, on balance, be better served by granting, rather than refusing, the request. 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 applicant-™s request.

Under section 48(1) of the Act, the Minister for Public Expenditure and Reform may draw up and publish guidelines for the effective and efficient operation of the Act to assist bodies in the performance of their functions under the Act. FOI bodies must have regard to any such guidelines. The Minister has produced guidance relating to section 37(8) and the 2016 Regulations.

In considering whether the public interest would on balance be better served by granting than by refusing to grant the request, the relevant guidance suggests that each case must be judged on its own merits and that the public interest in the confidentiality of personal information will have to be balanced against the public interest in the right of the requester to access the records. It suggests that in light of the requirement to have regard to "all the circumstances", the factors to be considered include:
 

• the confidentiality of personal information, as set out in section 37(1) of the FOI Act;
• whether the deceased would have consented to the release of the records to the requester when living;
• whether the person had outlined arrangements in his or her will or other instrument in writing consenting to the release of personal records;
• whether release would damage the good name and character of the deceased;
• the nature of the relationship of the requester to the deceased and the circumstances of their relationship before the deceased's death;
• the nature of the records to be released. The Guidance says that if the record is inherently private and of a very sensitive nature, then there must be compelling reasons for its release, which might include the release to a blood relative of records that show a hereditary medical condition. In relation to medical records in particular, the Guidance says that due regard should be had to the confidentiality of medical records in accordance with the Irish Medical Council Guide to Ethical Conduct and Behaviour;
• any other relevant circumstances that the requester may set out.

In its submissions, the HSE 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. The HSE also highlighted certain information contained in the records which it indicated had influenced its decision to withhold the records.

I note that the applicant, in her submissions, provided some background information relating to alleged external influences that caused her late husband to remove her as his next-of-kin. While the applicant clearly has understandable concerns about the basis on which her late husband made certain decisions regarding his personal life shortly before his passing, I must have regard to the evidence presented by both parties to the review in considering where the balance of the public interest lies. Having done so, it is not apparent to me that the applicant-™s late husband would have consented to the release of the records at issue when living. Accordingly, and having regard to the inherently private and confidential nature of the records and to the circumstances of their relationship before the deceased's death, I am satisfied that the HSE was justified in arriving at its decision that the public interest would not be better served by the release of the records to the applicant in this case.

I find therefore, that the HSE 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 spouse of the deceased. Accordingly, I find that the HSE was justified in refusing the applicant-™s request for access to her late husband-™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 HSE. I find that the HSE was justified in refusing access, under section 37(1) of the Act, to the records sought by the applicant,

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