Whether the Department was justified, under section 37(1) of the FOI Act, in refusing access to certain medical records relating to the applicant-�s deceased brother

30 September 2022

Background

The applicant in this case is the adopted brother of a deceased individual whose medical records are the subject of this review. On 2 March 2020, the Department received an FOI request from the applicant-�s representative for the adoption records of the deceased, who was born in a Mother and Baby Home in the 1970s but who died prematurely a number of years ago. For the avoidance of doubt, references in this decision to the applicant include his representative.

In a decision dated 29 March 2022, the Department granted partial access to the records sought. It refused access, under section 37(1) of the Act, to some of the records on the basis that they contained personal information relating to third party individuals and also to certain medical information relating to the deceased. The applicant requested an internal review of that decision on 12 May 2022. On 26 May 2022, the Department affirmed its decision. On 21 June 2022, the applicant applied to this Office for a review of the Department-�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 Department, to the correspondence between the parties as set out above, and to the applicant-�s comments in the application for review and in further communication with this Office. 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

The applicant confirmed that he was not seeking the release of any personal information in the records relating to third parties, including the deceased-�s birth mother. This review is therefore confined to the question of whether the Department was justified, under section 37(1) of the FOI Act, in its decision to refuse access to medical information relating to the deceased. Using the Department-�s numbering of the records, the relevant information is contained in records 0020 -� 0022, 0055 - 0057, 0060, 0062 and 0068. As 0020 and 0068 are duplicates of the same record, 0068 can be omitted from further consideration.

Preliminary Matter

Before addressing the substantive issues arising in this case, I wish to note that section 25(3) requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions. I am therefore required to limit the level of detail I can give in describing the withheld records. Equally, I must limit my description of the Department-�s submission regarding why it considers the records to be exempt. 

Analysis and Findings

Section 37(1): Personal information

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 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.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information, including (i) information relating to the educational, medical, psychiatric or psychological history of individual.

I am satisfied that the information at issue in this case relates to the medical history of an identifiable individual, and that section 37(1) applies.

Section 37(2): exceptions to 37(1)

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) apply in this case. That is to say, (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 the 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(7): Joint personal information

Section 37(7) of the Act provides that, notwithstanding section 37(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 its submissions to this Office, the Department made the case that medical information relating to the deceased-�s health at birth, and his condition in the postnatal weeks prior to his adoption, should be considered joint personal information relating to both the deceased and his birth mother. It said that the records at issue would have been created at a time when the baby was in the custody and care of his birth mother, who would have experienced these matters with her child during her labour and in the postnatal period. It pointed to certain specific information in support of this.

I do not dispute that the health of a mother and a baby in the postnatal period are strongly inter-connected and I note that the applicant explicitly excluded any personal information about the deceased-�s birth mother from the scope of this review. Having carefully examined the records at issue, I note that, for the most part, they were structured in such a way that medical information relating to the deceased is presented separately to personal information relating to his birth mother. A close inspection of the records does not support the Department-�s contention that because the records relate to the period of time prior to the deceased-�s adoption, that they necessarily also relate to and affect the interests of his birth mother. I am satisfied that the following information can reasonably be described as relating solely to the deceased:

• Record 0020, in full
• Record 0021, two lines after -�condition at birth-�
• Record 0022, in full
• Record 0055, all of the text below the line that starts -�Baby male born-� except for the text in red in the bottom right hand corner
• Record 0056, all of the text after the heading -�BABY-� except the last line on the page that begins -�Mother-�
• Record 0057, all of the text above -�Baby did very well-�, apart from the birth mother-�s name on the right hand side
• Record 0060, in full
• Record 0062, three lines following 14/1/75

Section 37(5)(a) -� the public interest

In considering section 37(5), I find that only section 37(5)(a) is relevant in this case. This section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.

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 inThe 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 -�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 inThe 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 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.  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.

Section 37(8) and the 2016 Regulations -� access by certain categories of person to personal information of minors and of deceased individuals

Section 37(8) of the FOI Act provides that the Minister for Public Expenditure and Reform may make regulations for the grant of an FOI request in certain circumstances where the requester is the parent or guardian of the individual to whom the record relates or where the individual to whom the information relates is dead. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016), as amended. These 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, in the opinion of the head, 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 important to note that the Regulations do not provide for the release to the next of kin of the personal information of any party other than the relevant deceased person. Neither do they provide for the release to such a requester of the personal information of the deceased person where that is joined to the personal information of any other party.  Therefore, I have considered section 37(8) and the 2016 Regulationsonlyin relation to the redacted medical information specified above, that I have found relates solely to the deceased.

It is not disputed that all of the information at issue in this case comes within the definition of personal information in section 2 of the Act, nor is it disputed that the applicant, as the brother of the deceased, is the next of kin for the purposes of the Regulations. The issue to be considered, therefore, 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 request for the deceased-�s medical information.

Pursuant to section 48(1) of the Act, the Minister for Public Expenditure and Reform published guidance concerning access to records relating to deceased persons. Under section 48(3) public bodies must have regard to such guidance in the performance of their functions under the Act. The guidance states that it is a matter for the decision maker to make such enquiries and engage in such consultation as is necessary to allow him or her to decide if the public interest would be better served by granting than by refusing the request. It suggests that certain factors should be taken into consideration when deciding if release is appropriate to the spouse or next of kin of the deceased, including:

• The confidentiality of personal information as set out in section 37(1);
• 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 the 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 states that if the record is inherently private and of a very sensitive nature, then there must be compelling reasons for its release. In relation to medical records in particular, it states that due regard should be had to the confidentiality of medical records in accordance with the relevant Irish Medical Council guidance (currently the Guide to Professional Conduct and Ethics for Registered Medical Practitioners - 8th edition published May 2016);
• Whether the requester can get the information they want without accessing the records of the deceased;
• any other relevant circumstances that the requester may set out.

The Department-�s position

In the context of its arguments that the information at issue in this case is joint personal information (discussed above), the Department said that the circumstances of the deceased-�s birth and postnatal period arose before he had a legal relationship with his adoptive brother, and that it therefore does not consider it appropriate to release such information under FOI given the absence of any restrictions once the information is disclosed.

The Department went on to say that insofar as certain medical information in the records may be considered as relating solely to the deceased, it had regard to the DPER guidance concerning access to records relating to deceased persons. In particular, it said that it considered the nature of the personal information and whether the deceased would have consented to the release of the records to the requestor when living. The Department said that the records do not give any indication of the deceased-�s wishes in relation to the question of the release of his health information to the requestor. However, it said that it considered it appropriate to maintain the confidentiality of what it regarded as sensitive information relating to the pre-adoption period in view of the fact that the pre-adoption records relate to a period in which the deceased did not have a legal relationship with the requestor (his brother). It said that the Department also considered that, as the requestor was not a blood relative of the deceased, there was no medical reason (such as a hereditary medical condition) to share the records for the benefit of the requestor. It said that, as the redacted records reflect, certain factual information that was not regarded as sensitive was released to the requestor.

Analysis

It is important to note at the outset that by making the relevant Regulations, the Oireachtas has determined that the next of kinshallhave a right of access to the records of deceased persons, subject to consideration of the public interest and all the circumstances. While I fully accept that medical records are inherently private and confidential, it seems to me that by making specific provision for access to the records of deceased persons, the Oireachtas envisaged that the next of kin would have a potential right of access to all relevant records, including medical records. Had it been intended that medical records would not potentially fall for release, such an exclusion could easily have been provided for.

I also fully accept that as records released pursuant to the FOI Act are released without any restriction as to how they may be used, such release is regarded, in effect, as release to the world at large. This is true of all records released under FOI regardless of the identity of the requester. Indeed, it is also true of requests where the requester seeks his/her own personal information. Nevertheless, the fact remains that the Oireachtas saw fit to determine that access to the records of deceased persons shall be granted to certain categories of requesters, provided the requirements of the Regulations have been met. Accordingly, I do not accept that the fact that the release of records under FOI is essentially release to the world at large provides a reasonable ground for refusing access to a category of requester that the Oireachtas has determined should be granted access.

I am also aware that the relevant Irish Medical Council guidance provides that patient information remains confidential, even after death. However, that guidance expressly acknowledges that there are circumstances where release may be appropriate. It suggests that if it is unclear whether the patient consented to disclosure of information after their death, consideration should be given to how disclosure of the information might benefit or cause distress to the deceased-�s family or carers, to the effect of disclosure on the reputation of the deceased and to the purpose of the disclosure.

On the matter of where the public interest lies and the factors to be considered, this Office generally has regard to the obiter comments of Macken J. in the Rotunda case. It is noted that a public interest should be distinguished from a private interest. However, I must bear in mind that these comments were made in relation to the requirements of FOI legislation in general and not to the very specific and detailed provisions covering access by next of kin to medical records of deceased persons. The Regulations and guidance make it clear that a range of matters such whether the deceased would have consented to the release of the records to the requester when living, the nature of the records to be released, and "any other relevant circumstances" must be considered. Therefore, matters which may be seen as private interests cannot be excluded solely on the basis that they are not public interest factors.

While the Department did not comment specifically on the public interest consideration required by the 2016 Regulations, I note its general position regarding the weight of the public interest in maintaining the confidentiality of inherently private and sensitive pre-adoption information, and that in this case it found that the public interest did not outweigh the right to privacy of the deceased.

I acknowledge the Department-�s point that the records themselves do not give any specific indication of the deceased-�s wishes in relation to the question of the release of his health information to the applicant. In circumstances where neither the Regulations nor the associated guidance require the next of kin, as requester, to provide evidence to suggest that such consent would have been forthcoming, it seems to me that it is appropriate to draw conclusions from the particular circumstances of the case under consideration. Having examined the records at issue in this case, I see nothing to suggest that the deceased would have withheld consent to the release of the records to his next of kin when living, nor do I see anything to suggest that release would damage the good name and character of the deceased. While the information at issue is medical information which is inherently private, the specific information at issue is not, in my view, especially sensitive. I note from the records that the deceased had made efforts on two separate occasions before his death to try to trace his birth mother and that he had asked that this search be continued by the applicant after his death. I do not think it is unreasonable to take from this that the deceased intended that the applicant would, at some point, access more information about his early life.

The Department placed some weight on the fact that the information in the records pre-dates the deceased-�s adoption, and relates to a time in which the deceased and the applicant did not have a legal relationship. Firstly, I would point out that the applicant is the deceased-�s younger brother and was not born during the period in question, which would be the case regardless of whether the two were siblings by birth or by adoption. Secondly, the 2016 Regulations simply provide that the next of kin is the -�brother or sister-� of the deceased (if the deceased has no children/grandchildren, or surviving parents) and makes no distinction between adoptive siblings or siblings by birth. I do not, therefore, find it to be appropriate to give undue weight to the fact that the information relates to the pre-adoption period.

I note the Department-�s other point that as the applicant was not a blood relative of the deceased, there was no medical reason (such as a hereditary medical condition) to share the records for the benefit of the applicant. While I accept the Department-�s point here, I also do not consider it unreasonable to take into account the applicant-�s desire to have more medical information about the deceased in an effort to potentially better understand his illness and death at a young age. 

On balance, and in the particular circumstances of this case, I am not satisfied that the Department has justified its refusal to release, under section 37(1), the deceased-�s medical information. In my view, 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, as the next of kin, for the records relating to his deceased brother. I therefore find that the Department was not justified in refusing the applicant's request for those records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department-�s decision, under section 37(1), to refuse to release medical information in the records that relates to the deceased only. I direct the release of the following:

• Record 0020, in full
• Record 0021, two lines after -�condition at birth-�
• Record 0022, in full
• Record 0055, all of the text below the line that starts -�Baby male born-� except for the text in red in the bottom right hand corner
• Record 0056, all of the text after the heading -�BABY-� except the last line on the page that begins -�Mother-�
• Record 0057, all of the text above -�Baby did very well-�, apart from the birth mother-�s name on the right hand side
• Record 0060, in full
• Record 0062, three lines following 14/1/75

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Stephen Rafferty
Senior Investigator