Whether the CMH was justified in refusing access, under sections 35 and 37 of the Act, to records relating to the applicant's late mother

15 December 2023

Background

In 1962, the applicant's late mother was transferred to the CMH from another mental health institution, to which she was returned in 1980. On 19 November 2021, the applicant made an FOI request to the CMH for access to his mother's medical/clinical records during her detention there. The CMH's decision of 7 January 2022 refused the request under section 37 (personal information) of the FOI Act. On 12 May 2022, the applicant sought an internal review of that decision, following which the CMH affirmed its refusal of the request, citing both sections 35 (confidential information) and 37 in support of its refusal.

On 21 August 2022, the applicant applied to this Office for a review of the CMH's decision. The CMH's submission to this Office, dated 5 December 2022, noted that it had not properly verified the applicant's identity. This is relevant to the applicant's standing as next of kin (see analysis of section 37(8) of the FOI Act), and was ultimately resolved by the CMH in March 2023. In April 2023, the CMH granted access to a small number of records, e.g. laboratory test results, medical notes, hospital attendances, etc. 

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, and correspondence between this Office, the CMH and the applicant. I have also had regard to the contents of the records at issue, the provisions of the FOI Act and toGuidancepublished in May 2017 by the Minister for Public Expenditure and Reform under section 48(1) of the FOI Act (i.e.Central Policy Unit Notice 25).

Scope of Review

The scope of this review is concerned solely with whether the CMH was justified in its decision to refuse access, under sections 35 and 37 of the Act, to the remainder of the records it holds relating to the applicant's late mother.

Preliminary Matters                                                                       

Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, section 25(3) of the FOI Act requires this Office to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. This provision has significant implications for the extent to which I can outline the CMH's submission and give reasons for my decision in this case. The applicant says that it is unfair to prevent him from addressing the CMH's specific arguments and suggests that he could be given some details. However, I am bound by the requirements of section 25(3).

Secondly, I should also explain that a considerable number of hand-written pages, and a small number of typed pages, are not fully legible. The CMH says that it is not possible to transcribe these because of their poor condition and because the records' authors are no longer employed by it. Noting the age of the records, I accept the CMH's position. In the circumstances, I have had regard to the contents of the records insofar as I found it possible to decipher them.

Analysis and Findings

Section 37

As I deem section 37 to be of most relevance in this case, I will consider its applicability to the records at issue first.

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 concerned would involve the disclosure of personal information (including personal information relating to a deceased individual). This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a) (see below), 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).

Section 2 of the FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The Act also details 14 specific categories of information which is personal without prejudice to the generality of the foregoing definition, including, but not limited to; (i) information relating to the medical or psychiatric history of the individual and (vi) information relating to any criminal history of the individual.

The CMH says its patients are detained further to legal orders by the criminal justice system. All of the records relate to the applicant's mother's mental and physical care and treatment whilst in the CMH. Bearing in mind the requirements of section 25(3), I am satisfied that they contain information about the applicant's mother that meets the definitions of personal information and which is in any event captured by one or more of the categories of personal information set out. I find that section 37(1) applies.

The records contain a very small number of references to the applicant. However, I am satisfied that such information relating to the applicant is inextricably linked to personal information relating to the applicant's mother. I also note that the disclosure of the records would, in some instances, involve the disclosure of information relating to individuals other than the applicant's mother. I am satisfied that this information is personal information relating to those third parties and the section 37(1) applies.

Section 37(1) is subject to the other provisions of section 37, which I examine below.

Section 37(2)

Section 37(2) provides that section 37(1) does not apply if;

a. the information concerned relates to the requester concerned,

b. the individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester,

c. information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,

d. the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or

e. disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual,

No argument has been made that subsections (b), (d) or (e) apply and I am satisfied that they do not apply in this case. In relation to the applicability of subsection (a), while I accept that the records contain some references to the applicant, as I have indicated above, such information is inextricably linked to personal information relating to the applicant's mother, while section 37(7) provides that notwithstanding section 37(2)(a), access to a record shall be refused where access to it 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. I find, therefore, that section 37(2)(a) does not serve to dis-apply section 37(1) in this case.

On the matter of the applicability of subsection (c), the Investigator informed the CMH of her view that the subsection was potentially relevant to record 5 i.e. a birth certificate. Such records are publicly available. The CMH did not respond to the Investigator's view. I agree with the Investigator. I find that subsection (c) applies to record 5 and that it is not exempt from release under section 37(1).

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 request would benefit the person to whom the information relates. Given the circumstances of this case, I find that section 37(5)(b) does not apply.

Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.

Secondly, it is important to note that the release of records under the FOI Act must be 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 can be put. With certain limited exceptions provided for under the Act, such as under section 37(8) which I consider below, FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.

All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.

In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, 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. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet case"). In that 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.

The majority of the arguments presented by the applicant in his submissions to this Office in support of the release of the records fall to be considered under my examination of the applicability of section 37(8) given that they are essentially private interests and relate to his relationship with the deceased, about whom the records relate. Nevertheless, I note that among other things, he said he wants to know that she was given the best available care and treatment. He also said that the records may contain medical history or diagnosis that is relevant to him and his family and fundamental to his own psychological health, well-being and identity. It seems to me that those arguments are reflective of general public interests in ensuring that vulnerable individuals are afforded appropriate levels of care and treatment in facilities such as CMH and in ensuing that relevant medical history information is made available to individuals where it may be relevant to, and impact on, their own health.

On the other hand, 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, including those afforded to deceased persons under the FOI Act, 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).

While I accept that the release of the records at issue might serve, to some degree, to somewhat enhance transparency around the levels of care and treatment afforded to vulnerable individuals in the CMH, it seems to me that the degree of enhancement would be quite limited, in so far as the records relate solely to one particular individual many years ago. Moreover, while it is not apparent to me that the contents of the withheld records are such that release would serve to disclose information of relevance to the applicant's own health, it remains the case that the records at issue are of an inherently sensitive and private nature and that I must regard their release as being effectively, or at least potentially, to the world at large. On this point of release to the world at large, I note that the applicant said that he was given access to his mother's records by a different hospital, that he said he treated those records with the utmost respect and confidentiality, and that he said he would treat the records at issue here similarly. While I do not doubt the applicant's assertions, I cannot ignore the fact that the FOI Act does not make any provision for restricting the use of information released pursuant to an FOI request.

In the circumstances, I do not accept that the public interest in releasing the records outweighs, on balance, the privacy rights 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, notwithstanding subsection (1), the Minister for Public Expenditure and Reform (the Minister) may provide by regulations for the grant of an FOI request where the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations.

The relevant Regulations in this case are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. No. 218 of 2016), as amended, (the Regulations). Among other things, the Regulations provide that, notwithstanding section 37(1), a request for records which involves the disclosure of personal information of a deceased individual shall be granted where 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 of information relating to a deceased person in circumstances where release would also involve the disclosure of personal information relating to third parties. Accordingly, I do not need to consider whether any personal information relating to parties other than the applicant's mother falls for release under the Regulations.

Under section 48(1) of the FOI Act, the Minister 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. Section 48(3) of the FOI Act provides that FOI bodies "shall have regard to" such guidelines when performing their functions under the FOI Act. The Minister has produced Guidance relating to section 37(8) and the Regulations. The Guidance notes that the 2016 Regulations require that regard must be had to "all the circumstances" when a decision maker is considering whether the public interest would, on balance, be better served by granting the request of a spouse or next of kin. It provides that in reaching a decision on an individual case, the decision maker should therefore take the following factors into consideration:

• the confidentiality of personal information, as set out in section 37(1) of the FOI Act,
• 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 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 says that if the record is inherently private and of a very sensitive nature, then there must be compelling reasons for its release, which might include the release to a blood relative of records that show a hereditary medical condition. In relation to medical records in particular, the Guidance says that due regard should be had to the confidentiality of medical records in accordance with the Irish Medical Council Guide to Ethical Conduct and Behaviour (the Medical Council Guide). It also says that, subject to other considerations, records containing the joint personal information of both the requester and the deceased might fall to be released,
• whether the requester can get the information they want without accessing the records of the deceased, and
• any other relevant circumstances that the requester may set out.

The arguments of the parties

The CMH notes the level of risk and concern associated with its patients and their conditions. It says that its treatment and care of its patients is complex, that patients understand their information will not be disclosed and that the records are therefore of a very private, sensitive and confidential nature.

The CMH says that disclosure of the records would damage the applicant's mother's good name and character. It says that they do not indicate that she would have consented to the release of the records to the applicant. It says also that, on balance, the public interest would be better served by refusing the request, having considered the Regulations, the applicant's natural interest in learning more about his family history, the privacy rights afforded to a deceased person's personal information further to the FOI Act, and the sensitive and confidential nature of information held in the clinical files of patients of the Central Mental Hospital.

This Office's Investigator informed the applicant of the CMH's submission in general. She also described the CMH's position as being that the records do not indicate that the circumstances of the applicant's relationship with his mother, during her time in the CMH or thereafter, would favour the release of the records to him. It would have been more accurate to say that the CMH refers to the records in the context of its view about their relationship during his mother's time in the CMH. In relation to its view on their relationship afterwards, the CMH refers to a matter not detailed in the records, which it says it established.

The applicant outlined the circumstances of his mother's life, including her initial involuntary committal to the other institution in the 1940s under mental health legislation. He says she was a vulnerable woman who could not read or write and who never had a right to have her case and/or detention reviewed. He wants to know the criminal legislation under which she was sent to and detained in the CMH, and to complete his understanding of her life. He acknowledges that historic psychiatric treatment decisions cannot be judged by today's standards but wants to know that she was given the best available care and treatment.

The applicant says that the released records need further context e.g. why blood tests, etc. were ordered. He says that, in any event, these are ancillary to information about the CMH's treatment of his mother's mental health, which was the primary reason for her detention there. He says that the records are very private, sensitive and confidential (which I presume he means in relation to parties other than himself) but that there is no reason for him to be denied access.

The applicant says that his mother spent longer in the other institution, which granted him full access to her records containing similar sensitive information, He says that the CMH's disclosure of further details would not infringe her privacy. He does not believe that his mother ever had an expectation of privacy. He accepts that the other institution's release does not give him an automatic right of access to the records at issue here. However, he says that such release is still an important precedent, given the presumably similar complex aspects of the treatment and care of patients with serious mental health problems in both State institutions.

The applicant says that it has not been explained how disclosure could damage his mother's good name, particularly given how long she is deceased. He says that none of his mother's siblings are still alive, and that he has great respect for her and is one of her last few relations who remembers her. He says that he treated the records released by the other institution with the utmost respect and confidentiality, and without impacting on any third parties, or his mother's privacy, good name and character, or the public interest. He says that that he will treat the records at issue here similarly.

The applicant disputes whether his mother had capacity to refuse or allow the release of her records or to understand this matter. He says that he cannot know for sure that his mother would have consented, and neither can the CMH or this Office. He also says that, in any event, she would have allowed the release of the records to him if she had had capacity and would have expected the sharing of her information with her only child.

The applicant says that while he only visited his mother twice in the CMH, the CMH does not take account of the fact that she was nonetheless his mother, or of his own very difficult personal circumstances at the time (which he describes). He says that he regularly visited his mother when she was sent back to the other institution, that she attended his wedding, and that he organised her funeral. He says that he assumes that the CMH's view is based on administrative records, and/or notes containing comments made by his mother during, and for the purpose of, her care and treatment. He does not believe that she gave such details to enable the CMH to judge their relationship and argues that such use is not legal. He says that he does not know how the CMH could have any information about events after his mother left its care. He describes his relationship with her as having improved significantly and says that he organised her funeral. He says that the records may contain medical history or diagnosis that is relevant to him and his family and are fundamental to his own psychological health, well-being and identity.

My Analysis

The above does not fully describe all arguments made by the parties and neither can I fully explain my analysis of each argument. I believe that to do so would require me to disclose some of the contents of the records the CMMH argues to be exempt. However,

I can confirm that I have had regard to all of the arguments set out in the respective submissions.

The 2016 Regulations make it clear that the records do not fall to be released simply because the applicant is his mother's next of kin. Neither is it relevant that another institution released what the applicant contends are similar records. A review by this Office is based on its own particular merits and takes account of the parties' arguments, the contents of the particular records at issue, the provisions of the FOI Act, and the relevant circumstances.

The applicant makes the point that the Guidance is simply guidance and is not legislation. Nevertheless, the fact remains that the Guidance was published by the Minister pursuant to section 48(1) of the FOI Act and FOI bodies such as the CMH must have regard to that Guidance when performing their functions under the FOI Act, pursuant to section 48(3). Accordingly, I am satisfied that it is appropriate to have regard to the various factors identified in the Guidance as relevant when considering whether the release of personal records to the next of kin is appropriate. Moreover, the Guidance provides 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, having regard to all the circumstances, the public interest would on balance be better served by granting than by refusing to grant the request. As such, I am also satisfied that it is entirely appropriate to draw inferences from the nature and contents of the records at issue.

I believe the applicant acknowledges the sensitive nature of his mother's personal information generally. In any event, overall I accept the CMH's position as to the complexity of treatment and the confidential nature of information provided and/or observations noted accordingly. In these circumstances, having considered the records to the best degree possible and regardless of their age, I accept that the personal information therein remains highly sensitive, inherently private, and confidential. I also consider the contents of the records to be such that they support the CMH's view that their disclosure would damage the applicant's mother's good name and character.

Having regard to the nature and contents of the records, I am also satisfied that consent would not have been forthcoming from the applicant's mother when living. I note the applicant disputes whether his mother would have had capacity to refuse or allow the release of her records or to understand this matter and I note his argument that he cannot know for sure that his mother would have consented, and neither can the CMH or this Office. While I agree with the applicant that no party can say with any degree of certainty whether his mother may have consented to the release of the records, I have already explained that I believe it appropriate to draw inferences from the nature and contents of the records at issue. In my view, the nature and contents of the records are such that it is reasonable to expect that the applicant's mother would not have consented to their release to the applicant, regardless of the nature of their subsequent relationship. The fact that she may not have had the capacity to make such a decision is irrelevant, in my view.

On the matter of the applicant's argument that the records may contain medical history or diagnosis that is relevant to him and his family and are fundamental to his own psychological health, well-being and identity, I note that the CMH released certain information it regarded as potentially relevant. I have also explained above that it is not apparent to me that the contents of the withheld records are such that release would serve to disclose information of relevance to the applicant's own health.

Having regard to all of the circumstances in this case, I am satisfied that the public interest would, on balance, be better served by refusing the request in this case. I find that the applicant is not entitled to access to the records at issue further to the Regulations made under section 37(8) of the FOI Act.

In conclusion, therefore, I find that the CMH was justified in refusing access, under section 37(1) of the Act, to the records at issue, apart from record 5, comprising a birth certificate.

Section 35

As I have outlined above, the CMH also cited section 35(1)(a) in support of its refusal of the request. That section provides for the mandatory refusal of a request where the record contains information given to an FOI body in confidence and on the understanding that it would be treated as confidential and its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

Record 5 aside, as I have found the remaining records to be exempt under section 37(1), I do not need to consider the applicability of section 35 to those records. In relation to record 5, I note that the CMH's submissions as to why section 35(1)(a) apply reflect its views in respect of the records generally and not specifically in respect of record 5. As I have outlined above, a birth certificate is a publicly available record. In such circumstances, I see no basis for finding section 35(1)(a) to apply. I find that the CMH was not justified in refusing access, under section 35(1)(a), to record 5 and I direct its release to the applicant.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the CMH's decision to refuse the applicant's request for records relating to his late mother. While I find that it was justified in refusing access, under section 37(1) of the FOI Act, to the vast majority of the records, I find that it was not justified in refusing access, under sections 35 or 37, to record 5 and I direct its release.

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 requester 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