Whether the HSE was justified in refusing access to records relating to the applicant's great grandfather, under section 35(1)(a) and section 37 of the FOI Act

12 December 2023

Background

This case has its background in a previous case (OIC-180219) that came before this Office.

On 1 August 2017, the applicant made a request to the HSE for information relating to her deceased great grandfather who was a patient in a named psychiatric hospital. The HSE refused access to the records sought under section 37(1) of the FOI Act. Following a review by this Office of the HSE's decision, the matter was remitted back to the HSE to make a fresh decision in respect of the applicant's request, having due regard to section 37(8) of the Act and the Regulations concerning access to records of deceased individuals.

In October 2021, the applicant provided evidence to the HSE of her relationship to the deceased. On 15 December 2022, the HSE refused the applicant's request under section 37(1) and 37(8) of the Act. On 6 January 2023, the applicant requested an internal review of the HSE's decision. She said that her interest in the records is for genealogical purposes and to find out about her family medical history. On 30 May 2023, the HSE affirmed its original decision and also refused the request under section 35(1)(a) of the Act. On 1 June 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 referred to above and the submissions made by both 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 in its decision to refuse the applicant access to her great grandfather's mental health records under sections 35(1)(a) and 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. This means that the extent of the reasons I can give for my decision is limited in this case.

Furthermore, 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

The records at issue in this case date from over one hundred years ago and are mental health records of the applicant's great grandfather while he was a patient a named psychiatric hospital. There are five pages of records which also contain references to other individuals. I consider section 37 of the Act to be of most relevance in this case and will address it first. 

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.

Given the nature of the records at issue, I am satisfied that their release would involve the disclosure of personal information relating to the applicant's great grandfather and other individuals referenced in the records and that section 37(1) of the Act applies. However, that is not the end of the matter as subsection (1) is subject to the other provisions of section 37.

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) applies in this case.

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 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 to whom the information relates.

In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, 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. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet case"). In that 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.

On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had 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] 1 IR 729, [2011] IESC 26) ("the Rotunda case"). In this regard, I note that a 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 her request to the HSE for an internal review of its original decision, the applicant said her interest is seeking her great grandfather's records is for genealogical purposes and to find out about her family's medical history. In its internal review decision, the HSE said that the applicant has expressed a private interest as opposed to a public interest. 

The information at issue in this case is the mental health records of the applicant's great grandfather which 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 am satisfied that the public interest in granting access to the records does not, on balance, outweigh the right to privacy of the deceased. I find, therefore, that section 37(5)(a) does not apply.

Section 37(8) and the 2016 Regulations

Section 37(8) of the FOI Act provides that the Minister for Public Expenditure and Reform may make regulations for the grant of an FOI request in certain circumstances where the requester is the parent or guardian of the individual to whom the record relates or where the individual to whom the information relates is dead. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016), as amended. These 2016 Regulations provide for the grant of access to the records of a deceased individual if the requester is the spouse or the next of kin of the individual and, 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.

The HSE said it is satisfied that the applicant, as a great granddaughter of the deceased, is the next of kin for the purposes of the Regulations. It is important to note that the fact that the applicant is the next of kin of the deceased individual concerned does not mean that she is automatically entitled to access the records. The issue that 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 applicant's request.

Under section 48(1) of the FOI Act, the Minister for Public Expenditure and Reform may draw up and publish guidelines for the effective and efficient operation of the Act to assist bodies in the performance of their functions under the Act. FOI bodies must have regard to any such guidelines. The Minister has produced a Guidance Note relating to section 37(8) and the 2016 Regulations.

The Guidance Note suggests that each case must be judged on its own merits and that the public interest in the confidentiality of personal information will have to be balanced against the public interest in the right of the requester to access the records. It suggests that in light of the requirement in the 2016 Regulations to have regard to "all the circumstances" when considering whether to grant or refuse a request from a spouse or next of kin of a deceased person, the factors to be considered include:

• the confidentiality of personal information as set out in section 37(1);
• whether the deceased would have consented to the release of the records to the requester when living;
• whether the person had outlined arrangements in his or her will or other instrument in writing consenting to the release of personal records;
• whether the release would 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 before the deceased's death;
• the nature of the records to be released.
• whether the requester can get the information they want without accessing the records of the deceased;
• any other relevant circumstances that the requester may set out.

Furthermore, in considering the nature and confidentiality of records to be released, the Guidance states that if the record is inherently private and of a very sensitive nature, then there must be compelling reasons for its release. In relation to medical records in particular, it states that due regard should be had to the confidentiality of medical records in accordance with the relevant Irish Medical Council guidance (currently the Guide to Professional Conduct and Ethics for Registered Medical Practitioners - 8th edition published May 2016 (the Medical Council Guide)). The Medical Council Guide states that patient information remains confidential even after death and suggests that, if unclear whether the patient consented to disclosure of information after their death, it should be considered how disclosure of the information might benefit or cause distress to the deceased family or carers, along with the effect of disclosure on the reputation of the deceased and the purpose of the disclosure.

As I noted earlier, I am constrained by the provisions of section 25(3) of the FOI Act in terms of the level of detail I can give when describing the records at issue or the HSE's submissions so I will provide a high level description only. The HSE said release of the records would be damaging to the reputation and good name of the deceased. The HSE said it believes the deceased would not have consented to the release of such records if he were living and that the confidentiality of the records should therefore be preserved. The HSE referred to specific parts of the records in support of this which I cannot describe here, due to the constraints of section 25(3), but I confirm that I have had regard to them. The HSE said the records to which this request relates are inherently private and confidential mental health records.

In its submissions to this Office, the HSE noted that the applicant had provided it with records she had regarding the deceased from his time in Portrane Hospital. The HSE said that the applicant therefore has in her possession records which identify the health issues relating to her great grandfather, that it claims are clearer than the records at issue in this case. The HSE said that having carefully considered the provisions of the Regulations, the factors identified in the Guidance, and the nature of the records sought, the public interest, including the public interest in the confidentiality of personal information, would on balance not be better served by granting than by refusing access to the records at issue. 

During the course of this review, I wrote to the applicant with details of the HSE's submissions and invited her to make her own submissions in reply. I subsequently received a telephone call from the wherein she outlined her reasons for seeking the records. The applicant indicated she is aware of her great grandfather's mental health issues and has no intention publicising them.

As outlined above, section 25(3) of the FOI Act operates to limit the extent to which I can discuss the information in the records at 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 in the circumstances. As noted above, the FOI Act places no restrictions on the use to which released records may be put. In my view it is most unlikely that the deceased would have consented to the release his mental health records to the applicant while he was alive. The records at issue in this case contain inherently private and confidential personal information about the applicant's deceased great grandfather. 

Having considered the matter carefully and while I appreciate the applicant will be disappointment by my decision, I believe the public interest in this case lies with the protection of her great grandfather's personal information.

In conclusion, I find that the HSE was justified in finding that the applicant does not have a right of access to the records at issue under section 37(8) of the FOI Act and the 2016 Regulations as the next of kin of the deceased. Accordingly, I find that the HSE was justified in refusing access, under section 37(1) of the Act, to the records sought. Having found section 37 to apply, I do not consider it necessary to consider section 35 in this case.

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 in refusing, under section 37(1) of the FOI Act, the applicant's request for access to records relating to her deceased great grandfather.

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.

Richard Crowley
Investigator