Whether the HSE was justified in refusing access to information relating to the applicant-�s late aunt under section 15(1)(a) of the FOI Act, on the ground that the records sought do not exist or cannot be found, and in refusing access to the records located in part under section 37(1), on the ground that their release in full would involve the disclosure of personal information relating to third parties other than the requester or his aunt

23 May 2023

Background

In a request dated 19 July 2022, the applicant sought access to his late aunt-�s medical records held by Kerry Mental Health Services. He also requested information on when she was admitted to St Finan-�s Hospital, when she died, a copy of the doctor-�s certificate and details of where she was buried. On 18 August 2022, the HSE issued a decision wherein it part-granted the applicant-�s request. It identified three records, one of which it released in full and the remaining two in part under section 37 of the FOI Act. Following a request for an internal review, on 29 September 2022, the HSE affirmed its original decision.

On 25 January 2023, the applicant applied to this Office for a review of the HSE-�s decision. In his application for a review, the applicant reiterated that he sought information on where his late aunt was buried, as well as access to the information withheld by the HSE.

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 comments in his application for review and to 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

During the course of the review, the HSE informed this Office that the applicant-�s request for his late aunt-�s burial information was overlooked when the request was originally processed, but that its position was that it holds no record of her burial details. This is effectively, a refusal to grant access to additional records relating to the applicant-�s request under section 15(1)(a) of the FOI Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.

Accordingly, this review is concerned solely with whether the HSE was justified in its decision to refuse access, under section 15(1)(a) of the FOI Act, to records relating to the applicant-�s late aunt-�s burial on the ground that the records sought do not exist or cannot be found and to certain information contained in the records located relating to third parties under section 37(1) of the FOI Act, on the ground that the release of this information would involve the disclosure of personal information relating to third parties.

Preliminary Matters                                                                        

Having regard to the applicant's submissions to this Office, I wish to make the following preliminary comments.

It is important to note that, while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, 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 sought. As such, I have treated the applicant-�s request as a request for records that might contain the information sought.

It is also important to note that although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records at issue is limited.

Analysis and Findings

Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner-�s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in -�search-� cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

As outlined above, during the course of the review, the HSE informed this Office that the applicant-�s request for his late aunt-�s burial information was overlooked when the request was originally processed. However, it stated that -�a physical search was carried out by the Archivist, Kerry County Library, where a large volume of historical records are stored on behalf of Kerry Mental Health Services-�. It said that these records consist of -�case books, admission and discharge registers-�, but that the quality and quantity of record keeping at the relevant time was -�quite restricted-�. The HSE-�s position was that given the content and the historic nature of the records sought, no electronic records or data existed relating to the applicant-�s request. It noted that there was no record of burial details within the hardcopy records identified in response to the applicant-�s request, which it considered was to be expected.

The HSE argued that all reasonable steps were taken to locate records in relation to the applicant-�s request. It also stated that it provided a list of alternative search options to the applicant to assist in locating burial information, following his application to this Office for a review. While this is not relevant to this review, I note that the HSE has provided the applicant with a link tohttp://www.kerrylaburials.ie/en/Index.aspxwhere burial records can be located. I understand that his late aunt-�s burial details can be accessed via this link by searching using her surname and the relevant year.

The Investigating Officer subsequently contacted the applicant and provided him with details of the HSE-�s submissions wherein it outlined its reasons for concluding that additional records relating to his request do not exist or cannot be found, in particular records relating to his late aunt-�s burial. The Investigating Officer invited him to make further submissions on the matter. In response, the applicant expressed his doubts about the thoroughness with which his request might have been dealt with, but otherwise did not make any substantive submissions on the applicability of section 15(1)(a).

It is important to note that we do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects an FOI body's explanation of why a record does not exist. The test in section 15(1)(a) is whether the body has taken all reasonable steps to locate the record sought.

While it is regrettable that the applicant-�s request for his late aunt-�s burial information was overlooked when the HSE initially processed the request, having regard to the submissions provided by the HSE, which outline the searches that were undertaken to locate records relating to the applicant-�s request and to its explanation for concluding that no such records exist, it seems to me that the HSE has taken all reasonable steps to locate the records sought. As noted above, an FOI body is not required to create records in response to an FOI request where none are held, nor is it required to answer a question, unless it holds a record which could be considered to contain the answer sought. In the circumstances of this case, I am satisfied that the HSE has taken reasonable steps to locate such records and that it has adequately explained that it would not expect records containing details of the deceased-�s burial to be held on her hospital file.

Accordingly, I find that the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to records containing the applicant-�s late aunt-�s burial information on the ground that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Section 37

Section 37(1)

Section 37(1) of the Act provides for the refusal of a request where the body considers that access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester, including personal information relating to a deceased individual.

Section 2 of the 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 the body as confidential. The Act details fourteen specific categories of information which is personal information without prejudice to the generality of the foregoing definition, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual, and (xiv) the views or opinions of another person about the individual.

I am satisfied that the information withheld in this case solely comprises the names and addresses of individuals other than the applicant or his late aunt. I find that section 37(1) applies.

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) 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 FOI 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 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 public interest should be distinguished from a private interest.

As noted above, the public interest in protecting the right of privacy of persons, including deceased persons, is expressly stated in the FOI Act. In addition, the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016) (2016 Regulations) referred to in detail below recognise the public interest in maintaining the confidentiality of personal information relating to a deceased individual. Accordingly, the statutory privacy rights afforded by the FOI Act relating to the personal information of a deceased person will be set aside by this Office only where the public interest served by granting the request (and breaching those rights) outweighs the public interest in protecting privacy.

As set out above, I am required to disregard the applicant-�s reasons for making his FOI request except insofar as it can be construed as a public interest. I understand from correspondence provided to this Office that the applicant is seeking access to the information contained in the records under FOI on the grounds that those immediately involved are deceased. 

While I can appreciate the reasons why the applicant is seeking access to the information contained in the records at issue, it seems to me that he has expressed a private, as opposed to a public interest. In the circumstances, I cannot identify any public interest reasons in favour of release of the withheld information. I find that the public interest in granting access to the withheld information does not, on balance, outweigh the right to privacy of the individuals concerned. I find, therefore, that section 37(5)(a) does not apply and that the HSE was justified in refusing access to the information withheld on the basis of section 37(1) of the FOI Act.

Section 37(8)

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 the following 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 FOI 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 FOI Act. The relevant guidance is available on the website of the Central Policy Unit of the Department of Public Expenditure and Reform and I expect that the HSE is aware of its existence. It suggests that each case must be judged on its own merit and that the decision maker will have to balance the public interest in the confidentiality of personal information against the public interest in the right of the requester to access the records. It suggests that in light of the requirement on the decision maker to have regard to "all the circumstances", the factors to be considered include:

• the confidentiality of personal information
• whether the deceased would have consented to the release of the records to the requester when living
• would the release 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 prior to the death of the deceased
• the nature of the records to be released
• can the requester obtain the information sought without accessing the records of the deceased?

Essentially, the general thrust of the applicant-�s argument is that he is entitled to the information contained in the records at issue as he believes it concerns deceased individuals who were related to him and his late aunt, for whom he is next of kin.

Accordingly, during the course of the review, the Investigating Officer asked the HSE whether it had considered section 37(8) of the FOI Act. The HSE said that the applicant had not stated that he was acting as a personal representative of those individuals or acting with the consent of a personal representative, nor that he was a person on whom a function is conferred by law in relation to the deceased individual or his/her estate. In relation to category (b), set out above, the HSE said that when considering the applicant-�s right of access to the requested information, he -�was asked to submit birth/death certificates to establish his relationship to the deceased-�. It noted that the applicant confirmed that he was his late aunt-�s -�nearest living next of kin-�, but said that it did not know the circumstances of the relationship between the two individuals named in the records to the applicant.

Essentially, the HSE-�s position is that it accepts that the applicant is the next of kin of his late aunt, but that, regardless of any potential right of access that the applicant might enjoy under the 2016 Regulations to information relating to his late aunt, the withheld information related not to her, but to other individuals.

Having reviewed the records, I accept the HSE-�s argument that the material redacted from the records is personal information relating to third parties other than the applicant-�s aunt. It appears from the applicant-�s correspondence to this Office that he is aware that information contained in his late aunt-�s medical records may well refer to other relatives, who were involved in his late aunt-�s admission to hospital. However, notwithstanding this fact, I consider that it is not evident from the information available to me that the applicant enjoys a right of access under the 2016 Regulations, as next of kin, to information in the records that relates to the third parties. In particular, there is no evidence before me to suggest, nor has the argument been advanced, that the applicant is (or may be) the next of kin of these individuals. In those circumstances, I do not find that a right of access exists for the applicant in respect of the information in the records that relates to individuals other than the applicant-�s late aunt.

Accordingly, I find that the HSE was justified in refusing access, under section 37 of the Act, the records sought in part.

It is, of course, open to the applicant to make a fresh request to the HSE for the information contained in the records relating to other third parties. It would be up to the HSE to satisfy itself as to the applicant-�s right of access, if any, to this information under the 2016 Regulations.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE-�s decision to refuse access to the records located in part on the basis of section 37(1), and to refuse access to additional records under section 15(1)(a) of the FOI Act.

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