Whether the HSE was justified in refusing the applicant access to records relating to his mother

15 September 2023

Background

In a request dated 3 January 2023, the applicant sought access from the HSE to records relating to his mother, a resident in a named nursing home. In particular, the applicant requested access to seven specified reports related to his mother-�s health, including a number of specified incidents and injuries.

In a decision dated 30 January 2023, the HSE refused the request in full, citing section 37(1) of the FOI Act as the basis for its decision. The HSE also indicated that it had considered Statutory Instrument No. 218/2016 -� Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (-�the 2016 Regulations-�) made under section 37(8), which allow for a right of access to personal information to which section 37(1) would otherwise apply, in certain limited circumstances. The HSE argued that the 2016 Regulations did not operate to grant the applicant a right of access to the information sought in this case.

On 13 February 2023, the applicant sought an internal review of the HSE-�s decision. In its internal review decision dated 20 March 2023, the HSE affirmed its original decision. On 23 March 2023, the applicant applied 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 submissions made by the HSE, as well as the applicant-�s comments in his application to this Office and to the correspondence exchanged between the parties. 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, under section 37(1) of the FOI Act, in refusing access to the records sought by the applicant.

Preliminary Matters

I 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, although I am obliged to give reasons for my decision, the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.

I also wish to note that section 18 of the FOI Act provides that, if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

In addition, 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.

Moreover, it is also important to note that a review by this Office is considered to be -�de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.

I also note that the HSE failed to issue its internal review decision on the applicant-�s request within the timeframe set down in the FOI Act. The HSE cannot but be well aware of its obligations in this regard. It is incumbent on me to emphasise to the HSE that the requirement 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.

Finally, I also note that the HSE did not provide a schedule of the relevant records to either the applicant or this Office. While the FOI Act does not require the preparation of a schedule, and this Office has no role in requiring the production of schedules, the HSE should ensure that its decision-makers have regard to the various material on the website of the Central Policy Unit (CPU) of the Department of Public Expenditure, NDP Delivery and Reform, including the FOI Code of Practice, and to produce schedules of records as a matter of good practice.                                                                                                       

Analysis and Findings

Section 37

Section 37(1)

The HSE withheld all of the 95 records that fall within the scope of this review under section 37(1) of the FOI Act. 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.

In its submissions regarding section 37(1), the HSE stated that the information in the records included incident reports and psychological information about an individual, namely the applicant-�s mother, including information about her mental capacity. The HSE stated that it had obtained this information in the course of its provision of health services to the individual in question, and held it on the understanding that it would be treated as confidential. The HSE stated that, having considered the content of the withheld records, it did not take the view that their release would further serve the public interest to such an extent that same would outweigh the applicant-�s mother-�s right to privacy.

I have examined the records at issue and am satisfied that they contain the personal information of the applicant-�s mother. In his application for a review of the HSE-�s decision, the applicant pointed to the wording of both the HSE-�s initial decision and its internal review decision, noting that it had stated that -�some-� (as the HSE stated in its initial decision) and -�much-� (as it stated in its internal review decision) of the information in the records was the personal information of his mother. The applicant argued that the HSE-�s use of the words -�some-� and -�much-� necessarily implied that not all of the information in the records was personal, and that some information in the records should therefore have been released. In relation to this point, I would refer to section 18(1) of the FOI Act, which as outlined above 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 head of the FOI 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). As further outlined above, the view of this Office is that being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records. Having examined the contents of the records, I consider that the HSE-�s approach in withholding the records in full -� rather than deleting from the records the information it considered to be personal to the applicant-�s mother, and releasing the resulting parts of the records with that personal information removed -� was a reasonable and proportionate approach in the circumstances.

However, the matter does not end there as 37(1) is subject to the other provisions of section 37. The applicant made a number of arguments as to why, in his view, certain subsections of section 37 operated to disapply section 37(1), and I consider it appropriate to address each of these arguments.

Section 37(2)

Section 37(2) provides that section 37(1) does not apply in certain circumstances. I would first of all note that I am satisfied that subsections (a), (c) and (d) of section 37(2) do not apply.

The applicant made particular arguments under subsections (b) and (e) of section 37(2), which respectively state that section 37(1) does not apply if:

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

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

In relation to section 37(2)(b), the applicant provided a copy of a consent form that his mother had signed, dated 23 December 2019, authorising the release to her family of -�all medical files, records, file notes, incident report forms and other information stored by [the] HSE-�on myself-�which they request and which they deem necessary to view-�. The applicant argued that his mother therefore consented to the release of her personal information, in satisfaction of subsection (2)(b) of section 37, and that accordingly the information in the records should be released to him in response to his request.

Where a consent is provided to the FOI body, subsection (2) of section 37 provides that the FOI body shall ensure that the consent of the individual is established to its satisfaction before the request is granted. Addressing this point, the HSE stated that the consent form signed by the applicant-�s mother in December 2019 had been superseded by events in the interim and that, by the time of the applicant-�s FOI request in January 2023, it was no longer valid. Due to the constraints placed upon me by section 25(3) of the FOI Act, I am unable to go into the specifics of the HSE-�s arguments in this regard, and it must suffice for me to state that the HSE-�s position is that no valid consent exists for the release of the personal information that it holds in relation to the applicant-�s mother.

The applicant disputed the HSE-�s position, arguing that no assessments, nor the -�outcome and repercussions-� of any such assessments, of his mother-�s capacity to give consent had ever been discussed with her family. However, the matter of whether or not a discussion took place with the family of the applicant-�s mother regarding her capacity to give consent is not determinative of the question of whether any such consent is in fact valid. On the question of such validity, I believe that it is appropriate for me to give weight to certain information that is contained in the records and additional information which was provided by the HSE. Again, due to the constraints placed upon me by section 25(3) of the FOI Act, I am unable to give further details in relation to the specifics of this information, although I consider that I am free to refer to the HSE-�s initial decision on the applicant-�s FOI request wherein it stated that the issue of the capacity of the applicant-�s mother -�-�has been certified by a registered medical practitioner-�. Beyond this, it must suffice for me to state that the HSE has outlined the grounds upon which it is not satisfied that the applicant-�s mother-�s consent is valid, and I do not consider that it is open to me to look behind the clinical opinions of the relevant medical professionals in this regard.

In his application for an internal review, the applicant argued that section 37(2) does not provide for a consent being subject to change in any circumstances, or being time bound, or becoming -�invalid for any reason-�. I cannot accept this proposition, as section 37(2) clearly states that any consent provided for the purposes of that subsection must be -�...establishedto the satisfaction of the head(my emphasis) [of the FOI body]-�. It necessarily follows from this requirement that the FOI body can (indeed, must) consider, and satisfy itself as to, the validity of any consent provided. Implicit in this obligation, in my view, is an acknowledgement of the reality that the validity of a consent is not necessarily constant and may change over time depending on circumstances, such as the capacity of the person who has given the consent.  As such, I must accept the HSE-�s contention that no valid consent exists for the sharing of the applicant-�s mother-�s personal information. In those circumstances, I am satisfied that section 37(2)(b) does not apply. I address further the question of the capacity of the applicant-�s mother in the section below dealing with the 2016 Regulations.

In relation to section 37(2)(e), the applicant stated that he and his family members had serious concerns for his mother-�s health and welfare, arising from a number of incidents that he outlined, several of which he described as serious. He argued that he had a valid concern relating to a serious and imminent danger to the life or health of his mother, such as would engage section 37(2)(e) and disapply section 37(1) of the FOI Act.

Addressing this point in its submissions, the HSE argued that disclosure of records containing the applicant-�s mother-�s personal information was not necessary in order to avoid any serious or imminent danger to her life or health. While I am prohibited, again, by the requirements of section 25(3) of the FOI Act from giving fuller details in relation to the HSE-�s argument on this matter, I believe I can note that, generally speaking, the HSE indicated that it was satisfied that the applicant-�s mother was being well cared for. The HSE concluded on the basis of the information that it outlined that it did not believe that the applicant-�s mother was in any serious or imminent danger such as might engage the provisions of section 37(2)(e).

On the matter of section 37(2)(e), I must note that the view of this Office is that the test to be met in applying this provision of the FOI Act is a high one. The risk to life or health must be serious and must be imminent. This means that the degree of danger must be grave and the danger must be impending or close at hand. It must also be shown that disclosure of the information is required in order to avoid such harm. A clear link must therefore be established showing that disclosure of the information is necessary for such purposes. On the basis of the information available to me, I do not consider that any such clear link has been established. While the applicant and his family are very clearly concerned regarding the welfare of his mother, I do not find that the test provided for in section 37(2)(e) (a serious and imminent risk to her life or health) has been met in respect of the information in the records. I cannot accept that the risk to the life or health of the applicant-�s mother is of such gravity, or is so close at hand, that the release of her personal information contained in the records is required in order to avoid that harm. In those circumstances, I find that section 37(2)(e) does not apply.

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.

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 Enet 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.

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.

The applicant argued in relation to section 37(5)(a) that the release of the relevant records would benefit his mother and her family, and therefore the public interest. Given the information that he outlined regarding his mother-�s health, the applicant argued that the benefit to her in releasing the information would outweigh the benefit in upholding her right to privacy.

In its submissions regarding section 37(5)(a), the HSE identified as a public interest factor in favour of releasing the records the promotion of openness and transparency in the manner in which it performed its duties, including adherence to its own incident management policy. However, the HSE argued that this public interest benefit was met by way of its regular communication with the applicant-�s mother-�s family in relation to her care generally, and in particular in following up with the family regarding any incidents related to her health. In support of this point, the HSE outlined a number of examples of meetings that had taken place and that it stated continued to take place with various members of the family. The HSE stated that follow-up actions in line with its Incident Management Policy had been taken in respect of any such incidents, including the completion of incident reviews, the creation of action plans and the implementation of recommendations. The HSE stated that it had also communicated with the family in relation to any such incidents.

The HSE also identified a number of public interest factors against releasing the records. These included the potential prejudice to the recording of nursing home residents-� personal information in their community nursing unit records, including medical, physical, mental health and care plan information; the potential inhibiting of the HSE in delivering effective care to clients in residential facilities in the future (as residents may be reluctant to provide sensitive medical and other personal information if they thought it might be released or shared inappropriately); and prejudice to the recording of incident information which would be used to ensure incidents were followed up and managed in an efficient and effective manner (the HSE argued that releasing such information may hamper the effective management of incidents if published and either interpreted in the wrong manner or used inappropriately). The HSE also identified the public interest in protecting the right of privacy of individuals and in safeguarding the flow of information to and from the HSE so that it could perform its statutory function of protecting patients effectively.

The HSE stated that it had weighed up the public interest factors both for and against the release and had concluded that, on balance, the public interest was better served by withholding the information in the records at issue. It argued that the public interest that the request should be granted did not outweigh the public interest that the right to privacy of the individual to whom the information relates should be upheld. In relation to the applicant-�s specific argument (that the release of the records would benefit his mother and her family, and therefore was in the public interest) the HSE argued that the applicant-�s request represented a private interest, not a public one, and that his mother-�s right to privacy in relation to her personal information should be upheld.

The information that I have identified in the records as falling within the scope of section 37(1) of the FOI Act is of an inherently private nature. In relation to the applicant-�s arguments that the release of his mother-�s personal information would benefit her and her family, and therefore is a public interest, I must have regard to the judgment of the Supreme Court in the above-mentioned Enet case. I consider that applicant-�s arguments are based on a general principle of openness which, as outlined by the Supreme Court, does not suffice to direct the release of records in the public interest. 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 individual. I find, therefore, that section 37(5)(a) does not operate to disapply section 37(1).

In relation to section 37(5)(b), the applicant argued that the release of the records would benefit his mother. He argued that such benefits would far outweigh her right to privacy in light of a number of factors that he outlined, including her age, health status and the various incidents that he set out in his application.

In response, the HSE stated that it had considered section 37(5)(b) and had concluded that it did not operate to disapply section 37(1) in this case. It made this finding on the basis that, according to the HSE, the public interest that the request should be granted did not outweigh the public interest that the right to privacy of the individual to whom the information relates should be upheld.  The requester-�s was a private interest, according to the HSE, and the right to privacy of the applicant-�s mother-�s should be upheld.

I am not convinced that the arguments made by the HSE are applicable in the context of section 37(5)(b) of the FOI Act. It is not entirely clear to me as to why the HSE has made public interest arguments in relation to section 37(5)(b), in circumstances where the wording of this subsection makes clear that the criteria to be considered in deciding whether it operates to disapply section 37(1) is solely whether the release of the information at issue would benefit the person to whom the information relates. It seems to me that the HSE has essentially reiterated the arguments that it made in relation to section 37(5)(a) and has not substantively addressed the provisions of section 37(5)(b).

This notwithstanding, I am not satisfied that section 37(5)(b) does, in fact, operate to disapply section 37(1) in this case. It is important to note that, as outlined above, the release of records under FOI is, in effect, regarded as release to the world at large, given that the FOI Act places no constraints on the uses to which the information contained in those records may be put. Therefore, while I have no doubt that the applicant wishes to ensure the effectiveness and adequacy of the medical care that his mother is receiving, and to take steps to address any shortcomings that he and his family perceive in relation to same, I must consider the wider argument as to whether the release of his mother-�s records, of itself, would benefit her. I do not consider that this Office is in a position to be satisfied, with certainty, that it is in possession of all relevant facts which might allow for an accurate assessment of whether the release of the records sought would benefit the applicant-�s mother in this particular case. Having carefully considered the arguments of both parties, and having weighed up all the circumstances of the case, I do not consider that it I can make a finding that the release of the information at issue would benefit the applicant-�s mother. Accordingly, I find that section 37(5)(b) does not serve to disapply section 37(1) of the FOI Act.

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:

-�(a) the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual-�-�.

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 person who, at the time of the request has, or is subject to, a psychiatric condition, mental incapacity or severe physical disability, the incidence and nature of which are certified by a registered medical practitioner, and who, by reason of that condition, incapacity or disability, is incapable of exercising their rights under the FOI Act. The 2016 Regulations state that, subject to the other provisions of the FOI Act 2014, a request for access to records will be granted where the requester is a parent or guardian of the individual to whom the record concerned relates. However, while it would appear -� on the basis of the information available to me -� that the applicant-�s mother falls into the above category of persons to whom the 2016 Regulations might apply, there is no evidence before me (and no argument has been advanced) to suggest that the applicant is a legal guardian of his mother. As such, the 2016 Regulations cannot operate to grant him a right of access to her personal information on the basis that she is a person who, at the time of the request has, or is subject to, a psychiatric condition, mental incapacity, severe physical disability, etc, as set out in the Regulations.

The 2016 Regulations also provide that a right of access to the personal information of individuals may be granted, in certain circumstances, to their next of kin. While it would appear possible that the applicant may be his mother-�s next of kin, the question of a right of access under the 2016 Regulations to an individual-�s next of kin only arises where the individual is deceased. As the applicant-�s mother is still alive, the question of a right of access to her personal information under the 2016 Regulations as his mother-�s next of kin does not arise.

Conclusion

On the basis of the above analysis of the provisions of section 37 of the FOI Act, and of the arguments advanced by the parties, I find that the HSE was justified, under section 37(1) and the 2016 Regulations, in refusing access to the records sought by the applicant.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE. I find that it was justified, on the basis of section 37(1) and the 2016 Regulations, to refuse to grant to the applicant access to the records containing personal information relating to his mother.

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