Whether the HSE was justified in refusing, under section 37(1) of the FOI Act, the applicant-�s request for records relating to her deceased mother

11 November 2022

Background

This decision is a composite decision relating to a request the applicant made to the HSE on 4 April 2022 for records held by the Safeguarding Team and the Public Health Nurse (PHN) concerning her deceased mother. The HSE dealt with the two parts of the request separately.

On 14 April 2022, it issued a decision refusing access to the Safeguarding records under section 37(1) of the FOI Act. The applicant sought an internal review of that decision on 23 May 2022. The HSE affirmed its decision on the Safeguarding records on 2 June 2022.

On 5 May 2022, the HSE issued a decision also refusing access to the PHN records under section 37(1) of the Act. The applicant sought an internal review of that decision on 30 May 2022 but no internal review decision was issued within the statutory timeframe.

On 11 July 2022, the applicant applied to this Office for a review of the HSE-�s decisions on both parts of her request. In the course of the review it emerged that, due to an administrative error, the HSE had not processed the applicant-�s request for an internal review of its decision on the PHN records. The HSE said that it would issue an internal review decision to the applicant, however it did not do so. As it was clear from the HSE-�s submissions to this Office that its effective position remained unchanged in relation to the PHN records, I progressed the review on that basis.

I have now completed my review in accordance with section 22(2) of the FOI Act. Having regard to the overlapping nature of the two decisions, I have decided to conclude by way of a formal, binding composite decision. In carrying out my review, I have had regard to the correspondence between the applicant and the HSE as outlined above and to the communications between this Office and both parties on the matter. I have also had regard to the contents of the records concerned.

Scope of Review

This review is concerned solely with whether the HSE was justified in refusing, under section 37(1) of the FOI Act, the applicant's request for access to her deceased mother's Safeguarding and PHN records.   

Preliminary Matters

Before I consider the substantive issues arising, I would like to make three preliminary comments. Firstly, section 13(4) of the FOI Act provides that in deciding whether to grant or to refuse a request, any reason that the requester gives for the request shall be disregarded. This means that I cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.

Secondly, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited. 

Thirdly, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

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.

The records in question comprise records held by the Public Health Nurse and the Safeguarding & Protection Team relating to the applicant-�s deceased mother. Given the nature of the records at issue and their contents, 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)

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)

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 public interest that the right to privacy of the individual to whom the information relates should be upheld, 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 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 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. 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.

As noted previously, I am required to disregard the applicant-�s reasons for making the FOI request except insofar as it can be construed as a public interest. The applicant contended that the HSE refused to release the records to her in order to cover up wrongdoing. She alleged that, prior to her death, another family member was controlling her mother and preventing her from having contact with the applicant. She claimed that the PHN and Safeguarding Team were complicit in this. 

I have carefully examined the contents of the records at issue and considered the arguments put forward by the parties. I note that the information contained in the records is of an inherently private nature and that the release of information under the FOI Act is, in effect, release to the world at large. On balance, I do not find that there is a public interest in granting access to the PHN or Safeguarding records that outweighs 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

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, 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.

In its decision letters to the applicant, the HSE did not make explicit reference to the provisions of section 37(8). However, in its submissions to this Office it confirmed that the decision makers had considered this sub-section in making its decisions on the requests. I informed the applicant of this and gave her an opportunity to make further comment. She did not make a written submission but reiterated that she was seeking the records in order to uncover wrongdoing in relation to the care of her deceased mother.

It is not disputed that the applicant, as the daughter 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 applicant-�s request.

Under section 48(1) of the FOI 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 a Guidance Note relating to section 37(8) and the 2016 Regulations.

The Guidance Note 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 in the 2016 Regulations to have regard to "all the circumstances" when considering whether to grant or refuse a request from a spouse or next of kin of a deceased person, the factors to be considered include:

• 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.

As I noted earlier, I am constrained by the provisions of section 25(3) of the FOI Act in terms of the level of detail I can give when describing the records at issue or the HSE-�s submissions so I will provide a high level description only. It is the HSE-�s position that, if she were alive, the deceased would not have consented to the release of the records to the applicant. It said that the relationship between the applicant and her mother had been acrimonious, including a period of estrangement. It referred to specific parts of the records in support of this which I cannot describe here, due to the constraints of section 25(3), but I confirm that I have had regard to them.

In her communications with this Office, the applicant said that she had no contact with her deceased mother for a period of time because another family member was controlling her mother and refusing to allow contact. She said that she raised this issue with the Safeguarding Team but that they did nothing to resolve it, and that she believed the PHN was listening to the other family member and probably afraid to do anything about the situation. She said that she did manage to speak to and see her mother in the months before she died. She also made the broader point that she believed that State organisations were not caring for vulnerable people in the way that they should, and that this needs to be addressed.

It is clear that there is a conflict between the applicant and the HSE in their respective characterisations of the relationship of the applicant to her deceased mother and the circumstances of that relationship prior to her death. It is beyond the scope of this review to seek to resolve this dispute. In considering where the balance of the public interest lies, I must have regard to the evidence presented by both parties to the review, including having regard to the content of the records themselves. Having done so, it is not apparent to me that the applicant-�s deceased mother would have consented to the release of the records at issue to the applicant if she were still alive. Accordingly, and having regard to the inherently private and confidential nature of the records, I am satisfied that the HSE was justified in arriving at its decision that the public interest, including the public interest in the confidentiality of personal information, would not be better served by the release of the records to the applicant in this case.

I find that the HSE was justified in finding that the applicant does not have a right of access to the records at issue under section 37(8) of the FOI Act and the 2016 Regulations as the next of kin of the deceased. Accordingly, I find that the HSE was justified in refusing access, under section 37(1) of the Act, to the records sought.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE-�s decisions. I find that it was justified in refusing, under section 37(1) of the FOI Act, the applicant-�s request for access to the PHN records and Safeguarding records relating to her deceased mother.

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.

Emer Butler
Investigator