Decision
Mr. X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-147334-K7J8C9
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Cite as: [2024] IEIC 147334
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Whether the HSE was justified in refusing, under sections 35 and/or 37 of the FOI Act, the applicant's request for access to his deceased daughter's medical records
4 December 2024
In an FOI request dated 14 September 2023, a solicitor acting on behalf of the applicant sought access to all records relating to the care and treatment of the applicant's deceased adult daughter at a named HSE hospital. All references to communications with the applicant in this decision include communications with his solicitor as appropriate.
In a decision dated 5 December 2023, the HSE refused the request under section 37(1) of the FOI Act. On 22 December 2023, the applicant sought an internal review of that decision. On 6 February 2024, the HSE affirmed its refusal of the request under section 37(1). It also cited section 35(1)(a) as a further ground for refusal. On 11 March 2024, 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 to this Office by the applicant and the HSE. 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.
This review is concerned solely with whether the HSE was justified in refusing access to the medical records of the applicant's deceased daughter under sections 35 and/or 37 of the FOI Act.
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).
Personal information is defined in section 2 of the FOI Act 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 details 14 specific categories of information that is personal without prejudice to the generality of the definitions provided for in (a) and (b) above. Included in the 14 categories is information relating to the educational, medical, psychiatric or psychological history of the individual.
The records at issue comprise the mental health records of the applicant's deceased daughter. I am satisfied that all of the information at issue comprises either personal information relating solely to the applicant's daughter or joint personal information relating to the applicant's daughter and other individuals. I find, therefore, that section 37(1) applies to all of the records at issue. That being said, section 37(1) is subject to the other provisions of section 37, which I will analyse below.
Section 37(2) provides that section 37(1) does not apply if;
a) subject to subsection (3), the information concerned relates to the requester concerned,
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,
c) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or
e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual,
No argument has been made that any of the provisions of section 37(2) apply in this case and I am satisfied that they do not.
Section 37(5) provides that a request which would otherwise be refused under section 37(1) may be granted where on balance (a) the public interest that the request 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) does not apply in this case.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) provides that in deciding whether to grant or refuse an FOI request, any reason that the applicant gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, it is important to note when records are released under the FOI Act they are considered, in effect, to be released to the world at large, as the Act places no constraints on the uses to which a released record under the Act can be put. With certain limited exceptions provided for under the Act, such as under sections 37(2)(a) and 37(8) (which I consider below), FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.
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 inThe 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 a case involving commercial sensitivity and confidentiality, I consider them to be relevant to the consideration of public interest tests generally.
The applicant argued in his submissions that the HSE had made an error in asserting that a deceased person has a right to privacy. Essentially, the applicant's solicitor submitted that all the rights of the deceased died with them and the public interest is not met by preserving the privacy rights of a deceased person. However, this ignores that fact that section 37(1) expressly provides for the protection of personal information relating to deceased individuals.
The applicant also argued that the public interest favours a disclosure of the request for the records so that he can properly prepare for the inquest into his daughter's death and to allow him to have a full understanding of her medical situation in the period up to her death. While the applicant has, in my view, essentially outlined private interests for seeking access to the records, I accept that they arguably reflect a more general public interest in allowing for scrutiny of how the HSE delivers its mental health services and the quality of care provided and that the release of the records at issue would serve that public interest to some extent.
On the other hand, 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) and that the right to privacy afforded by the Act extends to deceased persons. 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, including those afforded to deceased persons under the FOI Act, 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
The records at issue in this case are of an inherently private and sensitive nature. Having regard to the nature of the records and to the fact that release of the records must be regarded as being effectively or at least potentially to the world at large, I am not satisfied that there is any strong public interest in release that would outweigh, on balance, the strong public interest in protecting the privacy rights of the deceased.
I find therefore that section 37(5)(a) does not apply.
Section 37(8) of the Act provides that notwithstanding section 37(1), the Minister for Public Expenditure, NDP Delivery and Reform (the Minister) may make regulations for the grant of an FOI request in certain circumstances where the individual to whom the information in the record relates is deceased. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016). The 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 the FOI body considers, having regard to all the circumstances, that 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 Minister has published guidance on the application of the 2016 Regulations, in accordance with section 48(1) of the FOI Act. Section 48(3) of the FOI Act requires FOI bodies to have regard to the guidelines published by the Minister in the performance of their functions. The guidance note provides that the following factors should be taken into consideration in cases involving records relating to deceased individuals:
1. the confidentiality of personal information as set out in section 37(1) of the Act
2. whether the deceased would have consented to the release of the records to the applicant when living,
3. whether the person outlined arrangements in their will or otherwise consenting to the release of the personal records
4. whether the release would damage the good name and character of the deceased,
5. the nature of the relationship of the applicant to the deceased and the circumstances of the relationship prior to the death of the deceased,
6. the nature of the records to be released,
7. whether the applicant get the information elsewhere, without accessing the records of the deceased, and
8. any other circumstances relevant to the request as set out by the applicant.
I should state here that under section 25(3) of the Act, I am required to take all reasonable precautions in the course of this review to prevent the 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. It also means that I cannot provide full details of the submissions made by the HSE outlining why it considers the records in question to be exempt.
I can say, however, that the HSE described the records of the applicant's deceased daughter dating from her first attendance with Mental Health Service up to time of death. It said it considers the records as highly sensitive, inherently private, and confidential and that they include notes of clinical assessments, interviews and conversations with staff that the deceased would not expect to be shared outside of the clinical setting. It said these discussions included information which would be damaging to the good name and character of the deceased should it be released. The HSE also explained why it holds the view that the deceased would not have consented to the release of the records to the applicant. I also note that there are references in the records to support that position.
The records at issue in this case are of an inherently private and sensitive nature. I am also satisfied that there is sufficient evidence available to me to conclude that the deceased would not have consented to the release of the records to the applicant when living. Accordingly, having regard to all the circumstances, I am satisfied that that the public interest would, on balance, be better served by refusing the request. I find that the 2016 Regulations do not apply in this case.
In conclusion, therefore, I find that the HSE was justified in refusing, under section 37(1) of the FOI Act, the applicant's request for access to his deceased daughter's medical records.
As I have found the records to be exempt under section 37(1), I do not need to consider the applicability of section 35 to the records.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE's decision to refuse, under section 37(1) of the FOI Act, the applicant's request for access to his deceased daughter's medical records.
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.
Stephen Rafferty
Senior Investigator