Whether the Hospital was justified, under section 37(1) of the FOI Act, in refusing the applicant-�s request for certain information relating to his brother contained within his late mother-�s hospital records

13 December 2022

Background

In an FOI request dated 15 March 2022, the applicant sought access to his deceased mother-�s records. Specifically, he requested any statements that she made to social workers, counsellors, therapists or psychologists. Following further correspondence with the Hospital, the applicant clarified that he was solely seeking any statements made by his deceased mother regarding one of his brothers. On 23 June 2022, the Hospital refused the request under section 37(1) of the FOI Act. The applicant sought an internal review of the decision on 1 July 2022. He outlined the reasons why he required access to the records at issue and stated that his mother had given written permission for the release of similar records from another hospital. The Hospital affirmed its decision on 14 July 2022. On 13 September 2022, the applicant applied to this Office for a review of the Hospital-�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 by the Hospital, and to the correspondence between the parties and 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 Hospital provided this Office with 60 pages of case notes relating to the applicant-�s deceased mother, of which it identified 26 as falling within the scope of the request. Having reviewed the records, while I accept that the 26 records contain some reference to the applicant-�s brother, I find that only eight records are directly relevant to the specifics of the FOI request i.e. records containing statements made by the applicant-�s deceased mother regarding his brother. I have confined this review to a consideration of these records only.  

This review is therefore solely concerned with whether the Hospital was justified, under section 37(1) of the FOI Act, in refusing access to the records numbered by the Hospital as 45-48, 50-52 and 57.

Preliminary Matters                                                                       

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 Hospital-�s submission regarding why it considers the records to be exempt.

Furthermore, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office 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.

Analysis and Findings

Section 37(1)

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, (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual, (xiv) the views or opinions of another person about the individual.

Having examined each of the records at issue, I am satisfied that releasing these records would disclose personal information relating to the applicant-�s deceased mother and his brother, and that section 37(1) applies. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37.

Section37(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) apply in this case.

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 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. I am satisfied that section 37(5)(b) of the Act does not apply in this case.

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(s) 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 -�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 ("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.

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 explained that he was seeking the records in the context of a contentious family matter. Given the sensitive nature of the issues involved, I will not repeat them in any more detail here but I confirm that I have had regard to them.

I have carefully considered the applicant-�s arguments and have examined the records at issue. While I appreciate the reason why he is seeking access to the records, I am bound to treat this as a private, rather than a public, interest.

The information at issue in this case is of an inherently private nature and relates to both the applicant-�s deceased mother and his brother. Having regard to this and to the 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 individuals concerned. I find, therefore, that section 37(5)(a) does not apply.

Section 37(8) and the 2016 Regulations

For the purposes of completeness, I wish to briefly address section 37(8) of the FOI Act which 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 release of 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 the request.

The Minister for Public Expenditure and Reform has publishedguidancewhich FOI bodies must have regard to when making decisions in such cases. This includes a list of factors to be considered in light of the requirement in the 2016 Regulations to have regard to -�all of the circumstances-� when considering whether to grant or refuse a request from a spouse or next of kin of a deceased person. One of these factors includes whether the deceased would have consented to the release of the records to the requester when living, and I note the applicant-�s contention that his mother would have consented to their release.

However, the 2016 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.

Given that the records sought by the applicant contain personal information relating to his brother, I am satisfied that there can be no right of access to these records under section 37(8) and the 2016 Regulations, regardless of the circumstances. There is therefore no need to consider this provision any further.

Accordingly, I find that the Hospital was justified in refusing access, under section 37(1) of the FOI Act, to the records sought.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Beaumont Hospital-�s decision.  I find that it was justified in refusing access, under section 37(1) of the FOI Act, to the records sought.

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