Whether the HSE was justified in refusing access, under section 37(1) of the FOI Act, to certain information contained in the applicant's medical records, and whether it was justified, under section 15(1)(a) of the Act, in refusing to release any further records on the ground that no further relevant records exist or can be found

31 October 2023

Background

In an FOI request dated 5 August 2022, the applicant sought access to records relating to her engagement with mental health services between 1991 and 1998 approximately. She provided specific information about the services that she attended, both as an in-patient and as an out-patient, during that time. In a late decision dated 10 January 2023, the request was part-granted. The HSE identified 76 pages of records which it released, with certain information redacted under sections 35(1)(a) and 37(1). The applicant sought an internal review of this decision on 20 February 2023. Among other things, she sought the release of redacted communications between her now-deceased husband and her healthcare providers. On 6 March 2023, the HSE varied its original decision. It released the information relating to the applicant's deceased husband, however it affirmed its decision to refuse access, under section 37(1), to information relating to other third parties. On 15 May 2023, the applicant applied to this Office for a review of the HSE's decision. The applicant was also not satisfied that all relevant records had been identified and released to her.

In the course of the review, the HSE released record 9 with the redactions removed. I also provided the applicant with details of the searches that the HSE said it conducted for records.

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 and by the applicant, as well as to the exchanges set out above. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

As part of the FOI request, the applicant also sought records held by Connolly Hospital. This was dealt with separately by the HSE and falls outside the scope of this review.

This review is concerned only with (i) whether the HSE was justified in refusing to release parts of records 1, 26, 30, 31, 55, 56, 57, 59, 60, 64, 65, 67, 68, 72 and 73 under section 37(1) of the FOI Act, and (ii) whether it was justified, under section 15(1)(a) of the Act, in refusing access to any further records on the grounds that no further relevant records exist or can be found.

Preliminary Matters

There are a number of preliminary matters that I wish to address at the outset. Firstly, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to 'the world at large' as the Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record maybe put.

Secondly, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. This means that this Office cannot generally 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.

Finally, section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading.  However, the Commissioner takes the view that neither the definition of a record 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. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Analysis and Findings

Section 37 "� Personal Information

Section 37(1)

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned 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).

Section 2 of the FOI 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 that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information, including (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.

Having examined the redacted records, I am satisfied that the withheld information comprises personal information relating to persons other than the applicant herself. As such section 37(1) applies. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37. 

Section 37(2)

Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances provided for in section 37(2)(a), (c), (d) or (e) apply to the information concerned.

Section 37(2)(b) provides that section 37(1) does not apply if "any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester"�. In her application for review by this Office, the applicant said that her [now adult] children give their permission for any documentation referencing them to be released. I explained to the applicant that it was open to her to make a fresh request to the HSE, including written consent from each of her children for their personal information to be released to her. At the time of writing, I am not aware that such an application has been made and in these circumstances, I am not satisfied that section 37(2)(b) serves to disapply section 37(1) in respect of personal information contained in the records that relates to the applicant's children. This option remains open to the applicant.

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. The HSE said that having considered whether release of the records would be of benefit to the persons to whom the information relates, it concluded that section 37(2)(b) did not apply. The applicant made no specific arguments in this regard. It is not evident to me, from an examination of the records, that section 37(2)(b) applies.

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 inThe 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.

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 true public interest should be distinguished from a private interest.

In its submissions, the HSE said that while the language of section 37 and the Long Title to the FOI Act recognise a strong public interest in protecting the right to privacy, it was also aware of the public interest in people exercising their right to access records of public bodies and in ensuring the openness, transparency and accountability of public bodies in the performance of their functions.  It said however that, in this case, the records concerned relate to individuals other than the applicant, and that the right to privacy of these individuals outweighs the benefit of these records being released to the applicant. It said that release of the records would not further serve the public interest to such an extent that a breach of other people's right to privacy would be justified.

The applicant, in her application for internal review and application to this Office, said that the public interest in the request being granted outweighs the right to privacy of the individuals to whom the information relates. She said that as the withheld records hold personal and medical information relating to her, it was her right to obtain an unrestricted copy of them. She referred to the public interest in people exercising their rights in accessing records held by public bodies, and in openness, transparency and accountability.

Having carefully examined the records in this case, I note the vast majority of the information contained within them has been released to the applicant, with just a very small amount redacted that relates to identifiable persons other than the applicant. In processing the request, it seems to me that the HSE endeavoured to release the records to the greatest extent possible having regard to section 18 of the Act, together with the provisions of section 37(1). To that end, the public interest in a person being able to access their own medical records has more or less been met. Given the strong public interest in protecting the right to privacy I find no relevant public interest in granting access to the withheld information in the records that, on balance, outweighs the right to privacy of the individuals to whom the information relates. I find therefore that section 37(5)(a) does not apply. Accordingly, I find that the HSE was justified in its decision to refuse access to the withheld information under section 37(1) of the Act

Section 15(1)(a)

Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

The evidence in "search"� cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

The applicant stated that considering the length of time that she attended the mental health services in question, and the level of intensity of the engagement, that she believed there to be insufficient documents to cover the period. In particular, she said that there did not appear to be documentation relating to her initial referral to the mental health services, or in relation to her final discharge from all mental health services.

I asked the HSE to give details of the searches that it carried out in processing the FOI request and these details have already been provided to the applicant. In summary, the HSE said that the adult mental health services carried out searches in the relevant archiving department, at a service in a specified location and in the microfiche files of a specified hospital. It said that paper files were kept in cabinets in alphabetical order, and that microfiche slides were kept in filing drawers in alphabetical order with an archive database maintained. It said that all files were checked for the requested records both on-site, and off-site with the external storage company. It said that full electronic searches were conducted using the applicant's name, address, and date of birth as search terms. The HSE said that its position was that no further records exist beyond those 76 pages that have already been identified, and that all reasonable steps have been taken.

It is important to note that the FOI Act does not require FOI bodies to create records if none exist, apart from a specific requirement, in certain circumstances, to extract records or existing information held on electronic devices. Thus, a review by us is not concerned with the question of what records should exist. If a record does not exist, that is the end of the matter, regardless of the applicant's views as to the appropriateness or otherwise of the absence of certain records. While I appreciate the applicant's position that further records should exist, particularly relating to her initial referral and final discharge, having carefully considered the records at issue and the details of the searches that the HSE said that it carried out, it seems to me at this point that reasonable searches have been undertaken. I find, therefore, that it was justified in refusing to grant access to any further relevant records on the grounds that such records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE's decision. I find that it was justified, under section 37(1), in refusing access to parts of records 1, 26, 30, 31, 55, 56, 57, 59, 60, 64, 65, 67, 68, 72 and 73. I also find that it was justified in refusing access, under section 15(1)(a) of the Act, to any further relevant records.

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.
 

Emer Butler
Investigator