Whether the HSE was justified in refusing access to records relating to the applicant-™s late father

11 May 2023

Background

In a request dated 17 November 2021, the applicant sought access via her legal representatives to public health nursing records related to her late father. In particular, the applicant sought access to all documentation held by the HSE relating to the deceased, to include his hospital chart, any documentation prepared in accordance with the National Incident Management System (NIMS), records relating to imaging and radiology as well as all non-clinical information. The applicant specified that the request was to cover the period 17 December 2016 to 17 December 2019.

Although the HSE failed to issue a decision on the applicant-™s request within the statutory timeframe, it did issue a decision on 29 August 2022, wherein it refused the applicant-™s request under section 37(1) and section 37(8) of the FOI Act. The HSE also cited the FOI Act 2014 (Section 37(8)) Regulations 2016 (S.I. No. 218 of 2016) (-œthe 2016 Regulations-) as a basis for its decision. On 7 September 2022, the applicant via her solicitors made a request for an internal review of the HSE-™s decision. On 24 November 2022, the HSE issued an internal review decision wherein it affirmed its original decision (it should be noted that this decision was again outside the statutory timeframe provided for an internal review decision to issue). On 9 January 2023, the applicant applied via her solicitors to this Office for a review of the HSE-™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 correspondence exchanged between the parties, the applicant-™s appeal for review and the submissions made by the HSE in support of its decision. 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 solely concerned with whether the HSE was justified in its decision to refuse the applicant access to the records she sought relating to her late father, under section 37(1) and 37(8) of the FOI Act, as well as under the 2016 Regulations.

Preliminary Matters

As outlined above, the HSE failed to issue both its original decision and its internal review decision on the applicant-™s request within the timeframes set down in the FOI Act. The HSE cannot but be well aware of its obligations in this regard. It is noted that the documentation provided by the applicant-™s solicitors indicate that both they, and the applicant herself directly, made multiple attempts to elicit a timely response from the HSE. In the circumstances, I consider it incumbent on me to emphasise to the HSE that its obligation to issue decisions on FOI requests within the periods set out in the FOI Act is clear and unequivocal. The HSE should take steps to ensure that its decisions on FOI requests issue within the relevant statutory timeframes.

I also wish to note that section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions 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. Therefore, the extent to which I can discuss certain information contained in the records at issue is limited.

Finally, I wish to note that the release of records under FOI is generally considered to equate to their release to the world at large, as the FOI Act places no restrictions on the use to which released records may be put.

Analysis and Findings

Section 37(1)

Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. 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, 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 ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition. This includes, at point (i) of section 2, information relating to the educational, medical, psychiatric or psychological history of the individual, and at point (ii) information relating to the financial affairs of the individual.

In addition, Paragraph (I) of section 2 of the Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid ...".

In its submissions regarding section 37(1), the HSE stated that it was satisfied that the information requested was the personal information of the applicant-™s late father. It also stated that the records contained certain personal information in relation to third parties, some of which was sensitive in nature. The HSE stated none of the other subsections of section 37, to which section 37(1) is subject, were applicable.

I have examined the records at issue and am satisfied that they contain the personal information of the deceased and of certain third parties. In relation to the HSE-™s contention

that some of the personal information is sensitive, as outlined above, under section 25(3) of the FOI Act I am constrained in the degree to which I can discuss this information. It must suffice for me to state that I accept the HSE-™s contention in relation to this material.

However, the matter does not end there as 37(1) is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply.

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

In relation to the applicability of section 37(5)(a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual or 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, which 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 -œthere 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 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.

In its submissions regarding section 37(5)(a), the HSE stated that it had considered the Rotunda case and the language of section 37 and the Long Title to the FOI Act. It stated that

it did not consider that the release of the records would further serve the public interest to an extent that would justify an infringing the right to privacy of the individuals to whom the information in the records relates.

The information that I have identified in the records as falling within the scope of section 37(1) of the Act is of an inherently private nature. Having regard to the nature of the information at issue and to 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 information at issue does not, on balance, outweigh the right to privacy of the relevant individuals. I find, therefore, that section 37(5)(a) does not apply.

Section 37(8) and the 2016 Regulations

Section 37(8) of the Act provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform may provide by regulations for the grant of an FOI request where:

-œ(b) the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations-.

Such regulations have indeed been made, in the form of the 2016 Regulations. Among other things, the 2016 Regulations provide that, notwithstanding section 37(1), a request may be made for records which involves the disclosure of personal information relating to a deceased individual and shall, subject to the other provisions of the FOI Act 2014, be granted, where

-œ(a) the requester concerned belongs to one or other of the following classes:

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,

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 [of the relevant FOI body], 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-.

I note that, in correspondence with the HSE, the applicant asserted via her solicitors that she was the deceased-™s next of kin and that no will (and therefore no administration of the deceased-™s estate) existed. In its submissions, the HSE stated that it was satisfied, on the basis of the information provided to it, that the applicant was the deceased-™s next of kin for the purposes of the 2016 Regulations. She therefore falls within the class of person to whom a right of access to the records of the deceased may apply under the 2016 Regulations. As such, the question I must consider 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 request.

In its submissions to this Office, the HSE stated that it had considered the public interest test and had concluded that, on balance, the public interest was better served by withholding, rather than granting, access to the records. In support of this argument, the HSE highlighted certain information contained in the record which it indicated had influenced its decision in this regard. The HSE stated that, in reaching this conclusion, it had had regard to guidance published by the Minister for Public Expenditure and Reform on access to records relating to deceased persons, under section 37(8) of the FOI Act. This guidance refers to factors to be taken into consideration in deciding if release is appropriate to the next of kin. Factors referred to in the guidance include:

1. the confidentiality of personal information -“ would the deceased have consented to the release of the records to the requester when living?
2. has the person outlined arrangements in his or her will or other instrument in writing consenting to release of personal records?
3. would the release damage the good name and character of the deceased?
4. the nature of the relationship of the requester to the deceased and the circumstances of the relationship prior to the death of the deceased
5. the nature of the records to be released -“ can the requester obtain the information they seek without accessing the records of the deceased?
6. any other circumstances relevant to the request as set out by the requester.

The HSE made a number of arguments in relation to each of factors (i) to (v) above. As outlined previously, under section 25(3) of the FOI Act I am required to take all reasonable precautions to prevent the disclosure of material that would be exempt under the FOI Act. As such, I am constrained in relation to the amount of detail I can give regarding the HSE-™s arguments. However, I do not consider that I am in breach of section 25(3) by outlining the following arguments of the HSE.

In relation to point (i), and specifically on the question of the confidentiality of the information, the HSE indicated that the records contained information in relation to both the deceased and certain third parties which it regarded as very sensitive. In relation to the question of whether the deceased would have consented to the release of the records to the requester while he was living, the HSE pointed to a number of aspects of the information in the records which were of relevance. Due to the requirements of section 25(3) of the FOI Act, I am unable to discuss these in any detail, and it must suffice for me to state that I agree that the particular pieces of information in the records that the HSE has flagged are relevant in relation to the question. I consider that, on the basis of this information, it would be questionable, at best, to conclude with any degree of certainty that the deceased would have consented to the release of the records to the applicant while he was alive.

In respect of point (ii), it is established that no will exists in this case. Regarding point (iii), the HSE again indicated that the records contained personal information that was very sensitive. Again, I am constrained by the requirements of section 25(3) of the FOI Act in the

amount of detail I can discuss in relation to this information, and it must suffice for me to state that, having reviewed the records, I agree with the HSE-™s assertion.

In relation to point (iv), again the HSE flagged certain items of information in the records that it regarded as relevant to the question of the nature of the applicant-™s relationship to the deceased and the circumstances of their relationship before his death. Again, due to section 25(3) of the FOI Act I am unable to discuss these in any detail, and it must suffice for me to indicate once more that I accept the relevance of the information flagged by the HSE.

In relation to point (v), once more the HSE flagged the sensitive nature of the personal information contained in the records, and I accept this point.

For the sake of completeness, in relation to point (vi), I note from the correspondence exchanged between the parties that the motivation for the applicant in making this request was to enquire as to the standards of care provided to the deceased by the HSE, and that litigation is currently pending concerning the matter. The position of this Office is that in having regard to the circumstances when considering where the balance of the public interest lies, it may be reasonable to consider the reasons why a request was made. This being said, in the case at hand I do not consider that the reasons stated by the applicant-™s solicitors for having made her FOI request are determinative of the question of where the balance of the public interest lies.

In sum, the HSE argued that, due to the private nature of the information contained in the records, and having regard to the circumstances and the public interest, including the public interest in maintaining the confidentiality of personal information, it had determined that the right to privacy of the deceased outweighed the public interest in releasing the records in this case.

I refer again to the requirements of section 25(3) of the FOI Act, and the constraints that provision places on me in discussing the contents of the records. It must suffice for me to state that, upon a review of the contents of the records, and in light of the aforementioned guidance issued by the Minister, and in light of the submissions made by the HSE, I am satisfied that the public interest in this instance is better served, on balance, by the withholding rather than the granting of access to the records.

Accordingly, I find that the HSE was justified in refusing access, under section 37(1) of the FOI Act, to the information I have identified as comprising personal information. I further find that the HSE was justified in concluding that the applicant does not have a right of access to the records at issue under the 2016 Regulations as the next of kin of the deceased.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE-™s decision.

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.

Neill Dougan
Investigator