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

26 June 2023

Background

In an FOI request dated 30 January 2023, the applicant sought access to all medical records relating to her late father, to include x-rays, diagnostic tests, notes and orders from doctors, residents, registrars, nurses and carers connected with his admission to a named hospital. The request also sought access to records containing details of plans of care in relation to her late father, as well as medications given and their times, medications not given or discontinued, and any other charted information. The applicant's request stated that the records sought should encompass the period 9 December to 22 December 2022, and 27 December 2022 to 5 January 2023.  Enclosed with the FOI request was a letter of consent dated 30 January 2019 and signed by the deceased, which stated that he granted permission to the applicant to discuss and review all areas of his medical care including medications and chart review with medical staff.

In a decision dated 22 February 2023, the HSE 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) ("the 2016 Regulations") as a basis for its decision. On 4 March 2023, the applicant sought an internal review of the HSE's decision, in the course of which she made detailed arguments refuting the HSE's position. On 27 March 2023, the HSE issued an internal review decision wherein it affirmed its original decision. On 13 April 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 correspondence exchanged between the parties 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) of the FOI Act, as well as under the 2016 Regulations made pursuant to section 37(8) of the FOI Act.

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, the extent to which I can discuss certain information contained in the records at issue is limited.

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.

Finally, I wish to note 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. This is relevant in circumstances where the applicant, in her request to the hospital for an internal review of its initial decision on her FOI request, made a number of assertions in relation to the standard of care that she believed her late father had received and the extent to which appropriate communication with his family had taken place. While it is clear that the applicant is dissatisfied with the manner in which her late father was cared for by the HSE during the relevant period, this Office has no role in examining the appropriateness of any decisions or actions of the HSE.

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.

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. 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.

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 "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.

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:

"(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

"(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 the HSE has accepted that the applicant is the next of kin of the deceased 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. It is important to note that the fact of an FOI requester being the next of kin does not mean that the requester is automatically entitled to access the records of the deceased person. As outlined above, the 2016 Regulations stipulate that the request shall be granted where, in the opinion of the head of the FOI body, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing the request. 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 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 arguments in relation to a number of the above factors. In particular, it addressed the issues of the confidentiality of the information at issue, and whether the deceased would have consented to the release of the information while he was living. The HSE also made additional arguments regarding the public interest generally. 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 the confidentiality of the information, the HSE argued that medical records by their nature are inherently private and contain sensitive information. The HSE stated that confidentiality is central to trust in the doctor-patient relationship and is essential to safeguard a patient's dignity, privacy and autonomy, and argued that this extends after death. On the question of whether the deceased would have consented while living to the release of the records to the applicant, the HSE noted the letter of consent provided by the applicant, dated 30 January 2019 and signed by her late father, which gave her permission to discuss and review his medical needs. The HSE specifically addressed this point with reference to certain records contained in the deceased's medical file that, it argued, meant that the position in relation to the consent provided by the deceased in January 2019 had changed. The HSE stated that, on the basis of this information, it was satisfied that the records should not be released to the applicant. 

On this point, as outlined above, section 25(3) of the FOI Act operates to limit the extent to which I can discuss the specifics of the information in the records referred to by the HSE. In fact I am precluded by that section of the FOI Act from providing any more details in relation to the issue. It must suffice for me to state that, having considered the arguments of the HSE and the specific contents of the records, I am satisfied that the HSE's position is reasonable and I am minded to agree with its analysis. I consider that, on the basis of the information in the records upon which the HSE relied to make its decision, 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.

Regarding the public interest generally, the HSE noted that the applicant had regularly engaged with it during the period of her late father's admission to hospital, and noted that she had made a complaint regarding the care her father had received, which was currently being investigated. The HSE argued that the public interest in ensuing accountability in the performance of its functions would be met through the complaints procedure, while striking a balance regarding the deceased's wishes regarding his medical records. The HSE concluded that the public interest, including the public interest in the confidentiality of personal information, was better served by the refusal of the applicant's request.

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 records sought by the applicant on the basis that the personal information of the deceased. 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 to refuse access to the medical records of the deceased.

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