Whether the HSE was justified in refusing access to information contained in the medical records of the applicant on the basis that they contained the personal information of other individuals   

13 October 2022

Background

In a request dated 21 March 2022 the applicant sought access to records relating to her admission to Wexford General Hospital in 2007 and subsequent care, as well as records relating to her admission to University Hospital Waterford in 2022.

The HSE identified three files of records relating to the applicant-�s request, broken down as follows:

• File 1: 87 pages of records
• File 2: 23 pages of records
• File 3: 12 pages of records

In a decision dated 22 May 2022 the HSE part-granted access to these records, refusing access to parts of the records on the basis of section 37(1) relating to personal information. 

On 25 May 2022 the applicant sought an internal review of this decision.   It would appear from a review of the casefile that no internal review decision issued within the statutory deadline and therefore on 5 July 2022 the applicant appealed the matter to this Office.  However, it also would appear that following the applicant-�s appeal, an internal review decision subsequently issued on 8 July 2022 which affirmed the original 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 applicant-�s comments in her application for review and to the submissions made by the HSE in support of its decisions.  I have also had regard to the contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The scope of this review is concerned solely with whether the HSE was justified in refusing access to the remaining information in the records on the basis of section 37 of the FOI Act.

Analysis and Findings

Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information. Section 37(7) specifies that a request shall be refused where access to a record would, in addition to involving disclosure of personal information relating to the requester, also involve the disclosure of personal information of other individuals (commonly known as joint personal information).  In essence, this means that section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester.  However, if that personal information is inextricably linked to personal information relating to parties other than the applicant, then section 37(1) applies. 

Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it 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 the individual, and (xiv) the views or opinions of another person about the individual.

The records in this case constitute the medical records of the applicant.  The HSE argued that the remaining information in the records is either personal information relating to individuals other than the applicant or personal information relating to the applicant that is inextricably linked to personal information relating to other individuals. 

Having examined the information to which access has been refused in the records, I am satisfied that the release of this information would involve the disclosure of personal information relating to individuals other than the applicant.  I am also satisfied that personal information of the applicant is so closely intertwined with the personal information of other parties in certain records that it is not feasible to separate the two.  Accordingly, I am satisfied that the release of the outstanding information in the relevant records would involve the disclosure of personal information relating to individuals other than the requester and that section 37 applies to this information. 

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. However, I am satisfied that the relevant circumstances do not arise in this case. That is to say, (a) the information does not relate solely to the applicant; (b) the individuals to whom the information relates have 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 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.

Section 37(5) of the FOI Act 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 would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.   

In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals 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. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies.

However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a -�sufficiently specific, cogent and fact-based reason-� is required -�to tip the balance in favour of disclosure-�. While the comments of the Supreme Court were made in the context of the public interest test in section 36, which is concerned with the protection of commercially sensitive information, I consider them to be relevant to the consideration of public interest tests generally.

Moreover, while the Court stated that the public interest balancing test involves a -�weighing of the respective private and public interests in the analysis of the records in issue-�, it did not disturb the guidance that it previously gave inThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. 

On the matter of the applicability of section 37(5)(a), 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.

Having examined the records at issue, and having regard to the fact that the release of records under FOI is, in effect, regarded as release to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put, I find no relevant public interest in granting access to the records at issue that, on balance, outweighs the right to privacy of the individuals to whom the information in question relates.

Accordingly, I am satisfied that the HSE-�s decision to refuse access to the remaining information in the relevant records was justified 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 HSE-�s decision to refuse access to the remaining information in the relevant records on the basis of section 37(1) 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.
 

Mary Connery
Investigator