Whether the Hospital was justified in refusing access in full or in part, to hospital records relating to the applicant-�s deceased mother under section 37 of the FOI Act on the basis that they contain the personal information of other individuals

7 March 2023

Background

In a request dated 26 January 2022, the applicant made a request to the Hospital for her mother-�s medical file. Specifically, she sought -�all relevant information concerning her mother-�s diagnosis, treatment, and personnel involved with the care and wellbeing in the ward in which [she] was admitted to-� and -�any other raised issues up until her untimely passing.-� In her correspondence with the Hospital, the applicant described herself as the deceased-�s -�daughter and executor of [her] late mother-�s will-�.

On 27 April 2022, the Hospital issued a decision wherein it decided to part-grant the applicant-�s request. It released 26 records to the applicant in full. The Hospital refused access, in whole or in part, to 28 records under section 37 of the FOI Act (records 4-7, 11-12, 19, 62-63, 66, 82, 156, 182, 187, 194-200, 203, 205, 275 and 277-280). It refused access to records 189-193 in full under section 35 of the FOI Act. For ease of reference I have used the Hospital-�s numbering scheme for the records concerned, as set out in the records schedule provided to this Office. The Hospital also indicated that it had regard to the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016) (2016 Regulations) in making its decision. 

On 10 May 2022, the applicant sought an internal review of the Hospital-�s decision. She raised a number of queries, such as asking why her mother had been moved from one hospital room to another on a specified date. The applicant also appeared to seek access to the information redacted from the records provided in part.

On 2 August 2022, the Hospital affirmed its original decision. It also indicated that it considered section 37 to apply to records 189-193, as well as section 35 of the FOI Act. The internal reviewer did not make any reference to the 2016 Regulations in her decision letter. On 26 October 2022, an application was made 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 applicant-�s submissions. I have also had regard to the submissions made by, and correspondence with, the Hospital on the matter. 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

This review is concerned solely with whether the Hospital was justified in withholding medical records concerning the applicant-�s deceased mother, in whole or in part, under sections 35 and section 37 of the FOI Act.

Preliminary Matters                                                                        

Before I address the substantive issues, I would like to make the following preliminary comments:

I note that the applicant-�s sibling (Sibling B) applied to this Office for a review of the Hospital-�s decision on the applicant-�s FOI request. However, following queries from this Office, the original requester (Sibling A) subsequently made an application to this Office on her own behalf. I am satisfied that Sibling B was not listed as a party to the original or internal review requests to the Hospital. I am also satisfied that the Hospital-�s decision, which is under review by this Office, was made solely on its consideration of what comprised Sibling A-�s personal information and/or that of her mother. Furthermore, the Hospital has informed this Office that it did not have the consent of any other family members to release their personal information to the applicant, when processing her request.

In the circumstances of this case, I am satisfied that it is not appropriate for this Office to make a first instance decision on a request by another sibling for access to the records sought, or to seek to satisfy itself as to the identity or standing of other family members under the 2016 Regulations.

It is of course, open to the applicant and her sibling to make a new, joint, FOI request to the Hospital for access to their mother-�s records should they wish, or indeed, for the applicant-�s sibling to make a request on her own behalf. However, having regard to all of the circumstances of this case, I am satisfied that the appropriate course of action to take is to proceed with the review of the Hospital-�s decision on the applicant-�s request and not to consider Sibling B as a party to this review.

I note that the applicant posed a number of questions in her internal review request, her application for a review of the Hospital-�s decision and in her submissions to this Office. It is important to note that section 11 of the FOI Act provides for a right to access to records held by an FOI body. The FOI Act does not require FOI Bodies or this Office to answer questions posed. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the legislation, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.

I also wish to explain that 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. As I explained above, our role is confined to considering whether the decision taken by the Hospital is in accordance with the provisions of the FOI Act.

Section 13(4) of the FOI 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 (examined below).

Section 25(3) of the FOI Act 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 submissions regarding why it considers the records to be exempt.

Analysis and Findings

Having regard to the issues arising in this case and the submissions made to this Office, I propose to address section 37 in the first instance.

Sections 37(1) and 37(7)

Section 37(1) provides for the mandatory refusal of a request if granting access to the record sought would involve the disclosure of personal information relating to a third party, including a deceased individual.  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. 

Section 2 details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. These categories include (i) information relating to the educational, medical, psychiatric or psychological history of the 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, and (xiv) the views or opinions of another person about the individual.

Moreover, section 37(7) provides for the mandatory refusal of a request if granting access to the record sought 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 essence, this means that while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, any such personal information that is inextricably linked to personal information relating to parties other than the applicant is exempt. However, it is important to note that section 37(1) is subject to the other provisions of section 37, and those provisions must be considered before the request can be refused.

In this case, the Hospital refused access to records 4-7, 11-12, 19, 62-63, 66, 82, 156, 182, 187, 189-200, 203, 205 and 275 in part and records 277-280 in full under section 37(1) of the FOI Act on the basis that the information withheld was personal information relating to third parties. In its submissions to this Office, the Hospital stated that the information contained in records 277-280 concerning the applicant-�s mother was inextricably linked with the personal information of a third party. It said that it refused to release records 277-280 in full, as otherwise -�extensive redactions-� would have been required. 

Having carefully examined the records at issue, I am satisfied that the information withheld comprises the personal information of identifiable individuals other than the applicant and/or the applicant-�s late mother and/or joint personal information relating to the applicant-�s mother and other individuals.

Section 18(1) of the FOI Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). The Commissioner takes the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent. Having regard to the provisions of section 18 of the FOI Act, I am satisfied that it would not be practicable to release any of the information in records 277-280, as the result would be misleading.

I am satisfied that the release of the remaining information contained in the records would involve the disclosure of personal information relating to individuals other than the applicant or her mother and/or joint personal information relating to third parties and the applicant-�s deceased mother. It may well be the case that a considerable amount of the withheld information is generally known to the applicant. However, I must have regard to the fact that a record released under the FOI Act effectively amounts to disclosure 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. Accordingly, I find that section 37(1) applies to the record withheld in full or in part.

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)(b) provides that section 37(1) does not apply if consent is given in writing by the individual to whom that information relates. I note that, in her submissions to this Office, the applicant stated that -�we requested answers under the FOI Act about the care of our mother-�. However, she did not provide any evidence of consent from any of the third parties concerned to the release of their personal information under FOI. I also note that, in its submissions to this Office, the Hospital said that the decision maker -�did not have the consent-� of the other family members to release their personal information. It also noted that there appeared to be -�disharmony between family members-�.

In the circumstances, I am not satisfied that this Office can proceed on the basis that any of the third parties whose personal information has been withheld from release have given the appropriate consent in accordance with section 37(2). Neither do I consider it to be necessary or appropriate for this Office to approach individuals to seek their consent to the release of sensitive personal information. Accordingly, I find that section 37(2) does not dis-apply section 37(1) in this case.

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 information would be to the benefit of the person to whom the information relates.

Section 37(5)(a)

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 weighing 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 (-�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. 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.

As noted above, I am required to disregard the applicant's motives for seeking access to the records at issue. Therefore, I can only consider the purpose for which she seeks the information in so far as it reflects a public interest in favour of releasing the information. The applicant has not made any arguments as to why the public interest in releasing third party personal information would, on balance, outweigh the privacy rights of the individuals concerned, nor am I aware of any such public interest. I am satisfied that what the applicant has expressed in this case is a private interest in release of the records.

While I can appreciate the importance the applicant may attach to accessing the information, the Supreme Court judgments referenced above make it clear that in making this decision on the right of access under FOI, I cannot take into account the applicant-�s private interest in the grant of access to the records. I find, therefore, that section 37(5)(a) does not apply.

Section 37(5)(b)

The effect of section 37(5)(b) is that a record which has been found to be exempt under section 37(7), may still be released if it can be demonstrated that the grant of the request would benefit the third party or parties whose personal information is also contained in the records. The applicant has not made any argument that this provision is applicable but for avoidance of doubt on the matter, I am not satisfied that release of the details at issue would be of benefit to the various third parties whose personal information is contained in the records. I find that no right of access arises further to the provisions of section 37(5)(b) of the FOI Act.

Section 37(8) and the 2016 Regulations

Section 37(8) of the FOI Act provides that notwithstanding subsection (1), the Minister may provide by regulations for the grant of a request where the individual to whom the records concerned relate is dead and the requester concerned is a member of a class specified in the regulations. The relevant regulations are the 2016 Regulations. 

The 2016 Regulations provide for the grant of access to the records of a deceased individual if the requester is a person falling within three specific categories:  

-�7(a) -�

(i) a personal representative of the individual acting in due course of administration of the individual-�s estate or any person acting with the consent of a personal representative so acting,

(ii) a person on whom a function is conferred by law in relation to the individual or his or her estate acting in the course of the performance of the function, or

(b) 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.-�

In accordance with section 48(1) of the Act, the Minister has published guidance concerning access to records relating to deceased persons pursuant to the 2016 Regulations. Under section 48(3) public bodies must have regard to such guidance in the performance of their functions under the Act.

The 2016 Regulations do not provide for the release 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.

In its original decision, the Hospital stated that the applicant fell to be considered under paragraph (a) of Regulation 7. However, it did not specify which subsection of paragraph (a) it considered to apply. In its submissions to this Office, the Hospital stated that the applicant had submitted information -�confirming that she was acting as a person on whom a function is conferred by law in relation to the deceased individual or his/her estate-�. This appears to be a reference to subsection (a)(ii) above.  Essentially, the Hospital stated that it released certain records to the applicant having -�considered the guidance produced by the Minister of Public Expenditure and Reform in accordance with section 48(1)-� of the FOI Act, but that it determined that certain third party personal information should be withheld.

As noted above, while the records in this case relate to the applicant's deceased mother, I am satisfied that the information withheld relates to individuals other than the applicant or her deceased mother and/or comprises joint personal information of the deceased which is inextricably linked with that of other individuals. As also noted above, the 2016 Regulations do not provide for the release of third party personal information or of joint personal information relating to the deceased person and other individuals.

Accordingly, I find that the Hospital was justified in deciding that the applicant does not have a right of access to the remaining information contained in the records sought pursuant to the 2016 Regulations.

I also find that the Hospital was justified in refusing to grant access to the additional information contained in the records under section 37(1) of the FOI Act.

As I have found section 37(1) of the FOI Act to apply to all of the records concerned, it is not necessary for me to consider the applicability of section 35(1)(a) in relation to records 189-193.

Categories of requester under the 2016 Regulations

For the benefit of the Hospital, I should state that, based on the information available to me, it appears as though the Hospital may have misapplied the 2016 Regulations in this case. Having regard to the Minister-�s guidance (availablehere) and the wording of the applicant-�s original request, it appears that she would fall to be considered under paragraph (a)(i) above as the executor or personal representative of the deceased, rather than (a)(ii), which concerns a person carrying out a particular function which has been conferred by law.  

The Minister-�s Guidance states that a personal representative or administrator of an estate has the same right of access as the deceased person enjoyed when living. However, this only applies in respect of records relating to the performance of the functions specified in the regulations. It is unclear to me how the records concerned in this case would be necessary for the administration of the deceased-�s estate or for the performance of a function conferred by law. It is also unclear whether the Hospital satisfied itself as to these matters before making a decision in this case. Despite being asked by the Investigating Officer to explain its basis for concluding that the applicant was acting in the due course of the administration of the deceased-�s estate or in the performance of a function conferred by law in seeking the records concerned, the Hospital has provided no further information in this regard.

Furthermore, I note that the Hospital stated that it withheld -�sensitive-� information contained in the records as it found -�no benefit to the patient-� in releasing this information. It was also of the view that the disclosure of certain information in the records might cause harm to the existing family relationship. These matters appear to me to be more in line with the Minister-�s Guidance concerning the need to have regard to -�all the circumstances and the public interest, including the public interest in the confidentiality of personal information-� when considering the release of records to a next of kin under the 2016 Regulations, rather than matters relating to the release of records to the personal representative or to someone acting in the performance of a function conferred by law in relation to the deceased or her estate.

I would expect the Hospital to ensure that its FOI decision makers are familiar with the Minister-�s Guidance and the provisions of the 2016 Regulations and for them to satisfy themselves as to a person-�s standing under the 2016 Regulations before making a decision to release records relating to a deceased person in future.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Hospital. I find that the Hospital was justified in refusing, under section 37(1) of the FOI Act, the applicant-�s request for access to medical records relating to her late mother, in full or in part.

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.

Sandra Murdiff
Investigator