Decision
Ms W and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-147533-W8M4R4
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URL: http://www.bailii.org/ie/cases/IEIC/2024/147533.html
Cite as: [2024] IEIC 147533
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Whether the HSE was justified in refusing access to information in the applicant's medical records which relates to third parties
22 October 2024
In a request dated 15 January 2024, the applicant sought access to all of her personal mental health records relating to an A & E visit to a named Hospital, on the night of the 22 November 2022. In a decision dated 23 January 2024, three records were scheduled as relevant to the applicant's request, these included the applicant's ED Cover sheet, her Mental Health Assessment and her Discharge Plan. The HSE partially granted access to the Cover Sheet and Mental Health Assessment with personal information redacted under section 37(1) of the FOI Act. The applicant's Discharge Plan was released to her in full.
The applicant sought an internal review of the decision on 21 February 2024. In her request for review, the applicant stated that her ex-partner had provided inaccurate information to the Hospital while she attended A&E on the night in question, and that she required access to this information in order to be able to seek correction of it. The HSE issued its internal review decision on 12 March 2024. The internal review upheld the original decision.
On 13 March 2024, the applicant applied to this Office for a review of the HSE's decision, the applicant made a number of arguments in her application. These arguments will be explored in the body of the 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 outlined above and to the correspondence between this Office and both parties on the matter. I have had regard to the submissions provided by both parties. I have also examined the relevant records at issue. 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 redacted information in the applicant's ED Cover Sheet and Mental Health Assessment on the basis that it is exempt from release under section 37(1).
The applicant raised concerns about the sharing of her mental health information outside of the Hospital to the Local Mental Health Services. She has expressed concern that another body has access to very personal and private information about her, and that information provided to her by both the Hospital and Local Mental Health Services was unclear and contradictory.
While it is unfortunate that the applicant has been provided with conflicting information and while I note that she has concerns over the sharing of information, it should be borne in mind that this review has been undertaken in accordance with the provisions of section 22(2) of the Act and is concerned solely with a review of the decision taken by the HSE on her FOI request. I also note that an explanation on the sharing of information was provided from the Mental Health Services to the applicant.
The Records
Record 1 comprises the Emergency Department Cover Sheet relating to the applicant's admittance. The HSE have redacted the name and phone number of the applicant's next of kin from the record.
Record 3 comprises the Mental Health Assessment Form filled out by the Hospital on the evening the applicant was admitted. The HSE have redacted the name and phone number of the applicant's next of kin from the record, as well as notes relating to the applicant's family medical history and combined personal information relating to the applicant and other parties.
Section 37(1) 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 relating to a third-party other than the requester. 'Personal information' is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act also details 14 specific categories of information that is personal information without prejudice to the generality of the forgoing definition, including (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.
Section 37(1) of the Act does not apply where the information 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. This is commonly known as joint personal information.
The information redacted by the HSE from the records includes names, contact details, references to the applicant's former relationship and generic information related to the applicant's family history, relationship history and family mental health history. While the record contains a very small amount of joint personal information, I do not consider that personal information relating to the applicant can be separated from that of other individuals. The record also contains personal information relating entirely to identifiable individuals other than the applicant.
In correspondence with this Office, the applicant said that the information in question is already known to her. I wish to note for the benefit of the applicant that the fact that certain third party personal information may be known to a requester does not change the fact that such information may be exempt from release under the FOI Act.
Overall, I am satisfied that all of the information redacted from pages 1, 2, 3 and 5 comprise of personal information or joint personal information. Having examined certain information redacted on page 4 related to family mental health history, with the exception of the personal information related to the medical history of a specific family member, I am not satisfied that two lines of redacted information in question is personal information related to an identifiable individual. It discloses no detail of any family member's medical history, nor does it specify any specific individual, on that basis I am satisfied that it does not constitute personal information for the purposes of section 37(1) and should be released to the applicant. I find that section 37(1) of the Act applies to all the other information in the records. 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)(a) provides for the grant of access to personal information relating to the requester. I am satisfied that no further information falls for release further to this provision of the FOI Act. I am also satisfied that the remaining circumstances set out in section 37(2) do not arise. That is to say, the third parties have not consented to the release of their information; the information is not of a kind that is available to the general public; the information at issue does not belong to a class of information which would or might be made available to the general public; and the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
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. I am satisfied that section 37(5)(b) of the FOI Act does not apply.
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, subject to the FOI Act, in deciding whether to grant or refuse an FOI request, any reason that the requester 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 that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the FOI Act places no constraints on the uses to which a record released under FOI can be put. With certain limited exceptions provided for under the Act, 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 FOI 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) which provides that, in performing any functions under the FOI 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.
The HSE has argued that section 37(5)(a) does not seem to be of relevance to this case, as it does not consider that the release of information would benefit any of the individuals to whom it relates. The HSE has stated that it has had regard to the fact that the parties are family members and that the HSE does not know the circumstances of the relationships between the applicant and the third parties mentioned. It has stated that privacy rights will only be set aside where the public interest is served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.
The HSE has considered the following public interest issues and have taken account of the following factors in favour of release:
● The public interest in the public knowing how a public body performs its function
● The public interest in members of the public knowing that information held by public bodies about them, or those they represent, is accurate
● The public interest in members of the public exercising their rights under the FOI Act
● The public interest in the public knowing how a public body makes decision
The HSE has considered the following public interest factors which favour withholding the records:
● The public interest in protecting the right to privacy of members of the public
● The public interest in members of the public being able to communicate in confidence with public bodies without fears of disclosure in relation to personal or sensitive matters
● The public interest in public bodies being able to perform their functions effectively
● The public interest in safeguarding the flow of information to public bodies
The HSE has confirmed its position that the right of privacy of the third parties who are identified in the records is not outweighed by the public interest factors in favour of release such as enhancing openness, transparency and accountability.
Although the applicant did not specifically advance public interest arguments she has stated that it is her belief that false information was given by her ex-husband to the hospital in these notes, she states that she wishes to know what is redacted so that she can have it rectified if it is incorrect. It seems to me that the applicant has identified a public interest in members of the public knowing that information held by public bodies about them is accurate.
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). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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 information withheld from the records at issue is of a high level and does not provide a large amount of detail. Having considered the matter carefully, it is not apparent to me how the release of the small amount of personal information relating to individuals other than the applicant, effectively, or at least potentially to the world at large, would enhance the public interests identified. I would also note that the information in question is largely unrelated to the applicant or the applicant's mental state or diagnosis. The information in question either relates to names or phone numbers of third parties, or constitutes a one-line note of information.
I am also satisfied that the information at issue is of an inherently private nature and that release would involve a breach of the privacy rights of the individuals in question. Although the information may be known by the applicant already as stated above this does not mean a right of access exists under the FOI Act. Having regard to the information in question and the circumstances of this case I am not aware of any public interest that would, on balance, outweigh the privacy rights of the individuals concerned. I find, therefore, that section 37(5)(a) does not apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE's decision. I find that 1, 2, 3 and 5 and the second line on page 4 contain personal information relating to third parties other than the applicant and are therefore exempt from release under section 37(1)/37(7). I direct the release of the remaining information on page 4.
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Rachael Lord
Investigator