Whether the HSE was justified in refusing access to the applicant's medical records on the basis that section 37 applied to the withheld information

24 October 2022  

Background

In a request dated 30 August 2021, the applicant sought access to her medical records.  In a decision dated 28 January 2022, the HSE identified two volumes of records comprising 597 records relevant to the request.  Access was granted to some records in full and parts of other records, and access was refused to the remaining records or parts of records on the basis that sections 35 and 37 of the FOI Act applied to the withheld information.  On 18 February 2022, the applicant sought an internal review of the HSE-�s decision.  As she did not receive a response from the HSE within the prescribed timeframe, she applied to this Office for a review of the HSE-�s decision.  In an effective position letter, issued on 10 June 2022, the HSE granted access to additional records or parts of records and affirmed its refusal of the remaining records or parts of records under sections 35(1)(a) and 37 of the FOI Act.  Of the 597 records, 444 were released in full, partial access was granted to 143 records and ten records were refused in full.  On 13 June 2022, the applicant confirmed that she wished to proceed with her application to this Office for a review of the HSE-�s decision.

I have adopted the numbering used by the HSE in the schedule accompanying its effective position letter.  While the overall number of records identified is the same, it appears that the files were reassembled in a different order between the original decision and the effective decision.  This falls short of the records management practice that one would expect from the HSE.    

During the course of the review, the HSE revised its position on some of the withheld information.  Some additional records and/or parts of records were released to the applicant.  The HSE also revised its basis for refusal of access to records and is no longer relying on section 35(1)(a) and instead claimed that section 37 applied to all withheld information in the records.  Following this, of the 597 records, 511 were released in full, partial access was granted to 81 records and five records were refused in full.

The applicant raised a number of issues during the course of the review which are not directly relevant to her request for access to records under the FOI Act. I understand that she is engaging with the HSE and other relevant bodies with regard to these matters.

During the review, the applicant indicated that, in her view, additional records containing specific information should exist which had not been identified by the HSE (section 15(1)(a) of the FOI Act refers). Having carefully examined the records released in full or in part, I directed her to a number of records which appeared to contain the information in question. I invited the applicant to make further submissions if she remained of the view that further records should exist relating to her request. No response has been received from the applicant to date.

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 to the submissions made by the HSE in support of its decision.  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 its decision to refuse access, in whole or in part, to certain records under section 37 of the FOI Act.  Any records or parts of records which have been released are no longer within scope of this review.

For the sake of clarity, 86 records remain under consideration.  The records refused in full are Volume 1, records 63, 82, 95, and 97 and Volume 2, record 361.  The records which have been withheld in part are Volume 1 records 19, 22, 27, 32, 34, 49, 53, 56, 57, 59, 60, 61, 62, 85, 89, 90, 92, 93, 94, 99, 103, 138, 139, 154, 160, 161, 169, and 182, and Volume 2 records 50, 87, 94, 96, 103 to 108, 110, 111, 113, 114, 116, 125, 132, 145, 160, 201, 202, 212, 215, 223, 225, 232, 245, 249, 258, 261, 272, 275, 276, 279, 294, 305, 310, 313, 317, 319, 332, 333, 334, 337, 339, 343, 348, 349, 357, 362, 364, 366 and 375.

Analysis and Findings

Section 37

The HSE refused access to the remaining records at issue under section 37 of the FOI Act.

Section 37(1) 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. The section does not apply where the information involved relates to the requester (subsection (2)(a) refers). However, section 37(7) provides that, notwithstanding subsection (2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information). In essence, this means that while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, if that personal information is inextricably linked to personal information relating to parties other than the applicant, then section 37(1) applies.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual.

The records at issue are medical records of the applicant.  Having examined the records, I am satisfied that the release of the withheld information would involve the disclosure of personal information relating to individuals other than the applicant, or joint personal information of the applicant and other individuals which is inextricably linked, and that section 37(1) applies.

Section 37(2)

There are some circumstances, provided for at section 37(2), in which the exemptions at section 37(1) do not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of their 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. I find that section 37(2) does not apply to the withheld information.

Section 37(5)

Section 37(5) 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 am satisfied that the release of the information at issue in this case would not be to the benefit of the individuals to whom the information relates and that section 37(5)(b) does not apply.

In relation to the applicability of section 37(5)(a), 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 eNet Case-�), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and -�there 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. It is noted that a true public interest should be distinguished from a private interest.

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.

In considering where the balance of the public interest lies in this case, it is important to note that the release of records under FOI is regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act may be put. Having examined the records at issue in this case, I have not been able to identify any sufficiently specific, cogent and fact-based reason for finding that the public interest that the request should be granted outweighs the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

In conclusion, therefore, I find that section 37(1) of the Act applies to the records or parts of records for which it has been claimed.   

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE-�s decision. I find that the section 37(1) of the FOI Act applies to the withheld information.

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.
 

Brenda Lynch
Investigator