Decision
Mr. X and Mater Misericordiae University Hospital
From Office of the Information Commissioner (OIC)
Case number: OIC-149030-V6F3R2
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URL: http://www.bailii.org/ie/cases/IEIC/2024/149030.html
Cite as: [2024] IEIC 149030
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Whether the Hospital was justified in refusing access to certain information in the applicant's mother's medical records on the basis of sections 35(1)(a) and 37(1) of the FOI Act
5 December 2024
This case relates to a request for records relating to the applicant's late mother who passed away in the Hospital in October 2021. I wish to express my condolences to the applicant at the outset for his loss.
On 10 December 2023 the applicant submitted a request seeking access to records relating to his late mother from 14 September 2021 to 6 October 2021, making specific reference to information relating to medication and treatments provided to her. The Hospital issued a decision dated 9 February 2024 wherein it identified the following records as falling within the scope of the applicant's request:
-¢ Binder 1 -“ AE records (5 pages)
-¢ Binder 2 -“ Electronic labs orders (25 pages)
-¢ Binder 3 -“ Electronic documents records (14 pages)
-¢ Binder 4 -“ HRU records (211 pages)
-¢ Folder Display Bloods & Microbiology (6 pages)
-¢ Paper Hospital Chart (272 records)
-¢ Electronic Medical Social Worker record 17/9/21 (3 pages)
The applicant was granted access to the four binders of records as well as the folder display and was part-granted access to the paper hospital chart, with access to pages 40, 91 and 129 refused on the basis of section 35(1)(a) and 37(1). The applicant was refused access to the electronic medical social worker record on the basis of the same two provisions. On 29 April 2024 the applicant sought an internal review of this decision and on 13 May 2024 the internal reviewer affirmed the original decision.
On 15 May 2024 the applicant appealed the matter to this Office.
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 applicant's comments in his application for review as well as the applicant's further submissions to this Office. I also provided the Hospital with an opportunity to make submissions in this matter, but it chose not to make any further submissions as it considered that its position was adequately set out in both the original decision and the decision of the internal reviewer. I have therefore had regard to these decisions. 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.
The scope of this review is solely concerned with whether the Hospital was justified in refusing access to certain information in the applicant's late mother's medical records on the basis of sections 35(1)(a) and 37(1) of the FOI Act.
Before I address the substantive matters arising in this case, I wish to make a number of preliminary comments. First, it is important to note that although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a 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 remaining information in the records is limited. Similarly, the provision has implications for the extent to which I can give reasons for my decision.
Secondly, section 18(1) of the FOI Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office considers neither the definition of a record under section 2 of the Act, 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, this Office is not in favour of the cutting or 'dissecting' of records to such an extent.
As set out above, the Hospital has relied on sections 35(1)(a) and 37(1) to refuse access to certain information in the relevant records.
As I consider section 37 to be the most relevant, I propose to consider that provision first.
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 would involve the disclosure of personal information (including personal information relating to a deceased individual). 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.
The requested records relate to the applicant's mother's medical history. I am satisfied that the information at issue in this case relates to the personal information of an identifiable individual and that section 37(1) therefore applies. However, section 37(1) is subject to the other provisions of section 37, which I will examine below.
Section 37(2)
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) apply in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third party has not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
In the circumstances of the case I am satisfied that none of the provisions of section 37(2) serve to disapply section 37(1) in this case.
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. Given the circumstances of this case, I find that section 37(5)(b) does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. Firstly, section 13(4) provides that, subject to the 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 insofar 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 could 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 Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, such as under section 37(8) which I will 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 individual 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 cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
The applicant's position is that he is entitled to access the entirety of his late mother's records as her next of kin. In his submissions to this Office, he said that when his mother was admitted to the Hospital in September 2021 she tested positive for Covid-19. The applicant said that he has concerns in relation to the medication which was prescribed for his mother prior to her death. He said that he understands that many patients with Covid-19 died due to having been prescribed two named drugs. He wishes to ascertain whether his mother was prescribed these two drugs. The applicant also said that he had asked the medical team caring for his mother to prescribe her a different drug but they refused to do so.
The applicant further said that it is his understanding that hospitals were paid considerable amounts of money for each death that was registered as being due to Covid-19 and he said that he has suspicions about the manner of his mother's death. The applicant said that his mental health has deteriorated since his mother's death and that the release of his mother's full medical files would assist him in understanding what happened. Finally, the applicant said that he believes that the reason that certain information was refused to him in the records was because the doctors spoke to his mother in confidence and she either told them something that she didn't want the family to know or the doctors told her something that they did not want her family to know. The applicant said that irrespective of which is the case, he considers that as his mother's next of kin he has the right to receive her full medical records.
The Hospital said that the information at issue is of an inherently private nature. It said that there is a public interest in protecting the rights of privacy and confidentiality of the deceased individual in question. While the Hospital accepts that there is a public interest in knowing how a public body performs it functions, it considers that this does not outweigh the public interest in preserving the confidentiality of personal information, including that of deceased individuals.
The applicant has not advanced any specific public interest arguments. He has essentially expressed a private interest for seeking access to the records. However, I note that he has stated that he has concerns about the appropriateness of the treatment provided to his mother. It seems to me that this could be understood as reflecting a general public interest in ensuring that persons are or were afforded appropriate levels of care and treatment by healthcare providers.
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. Privacy rights, therefore, will be set aside only where the public interest served by granting release (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).
While I accept that the release of the remaining information in the records at issue might serve, to some degree, to somewhat enhance transparency around the levels of care and treatment afforded to patients of the Hospital, it seems to me that the degree of enhancement would be quite limited, in so far as the records relate solely to one particular individual. Moreover, it is not apparent to me that the contents of the withheld information are such that release would serve to disclose information relating to specific medication provided to the applicant's mother. On the other hand, the remaining information in the records is of a sensitive and inherently private nature and I must regard its release as effectively, or at least potentially, to the world at large. In the circumstances, I do not accept that the public interest in releasing the withheld information in the records outweighs, on balance, the privacy rights 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, notwithstanding subsection (1), the Minister for Public Expenditure and Reform (the Minister) may provide by regulations for the grant of an FOI request where the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations.
The relevant Regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016). Among other things, the Regulations provide that, notwithstanding section 37(1), a request for records which involves the disclosure of personal information of a deceased individual shall be granted where the requester is the spouse or the next of kin of the individual and in the opinion of the head, 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.
Under section 48(1) of the FOI Act, the Minister 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. Section 48(3) of the FOI Act provides that FOI bodies "shall have regard to" such guidelines when performing their functions under the FOI Act. The Minister has produced Guidance relating to section 37(8) and the Regulations.
The Minister's Guidance notes that the 2016 Regulations require that regard must be had to "all the circumstances" when a decision-maker is considering whether the public interest would, on balance, be better served by granting the request of a spouse or next of kin. It provides that in reaching a decision on an individual case, the decision-maker should therefore take the following factors into consideration:
-¢ The confidentiality of personal information, as set out in section 37(1) of the FOI Act;
-¢ 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 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.
In respect of the nature of the records to be released, the Guidance notes that if the record is inherently private, and of a very sensitive nature, then it is not likely to be released unless there are compelling reasons for so doing. 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.
I am satisfied that I have summarised the applicant's arguments and assertions above. In sum, his position is that he is entitled to access the remaining information in the records as he wishes to understand what medication was provided to his mother prior to her death as he considers that certain medication may have contributed to her death.
In its decision-making records, the Hospital made specific reference to the 2016 Regulations. It said the remaining information in the applicant's mother's medical files is of an inherently private and sensitive nature. It said the information at issue was given in confidence, on the understanding that it be treated as confidential. It further indicated that the information was conveyed at a time when the individual was considered to be vulnerable and there is no evidence from the applicant's mother's medical files that she would have consented to the release of this information after her death.
The 2016 Regulations do not provide for the release of information solely because the applicant is his mother's next of kin. Neither do they provide for the release of records on compassionate grounds.
As outlined above, section 25(3) of the FOI Act operates to limit the extent to which I can discuss the withheld information in the records. It must suffice for me to state that, having considered the arguments of the Hospital and the specific contents of the records, I am satisfied that the Hospital's position is reasonable in the circumstances. I accept that the remaining information in the records is of a private and confidential nature. As noted above, the FOI Act places no restrictions on the use to which released records may be put. In my view, having regard to the nature and content of the information, it is unlikely that consent would have been forthcoming from the applicant's mother when she was alive to the release of the information at issue to the applicant.
On the matter of the applicant's arguments that the remaining information in the records may relate to medication prescribed to this mother, I note that the Hospital has released the majority of his mother's medical files to him. I have also explained above that it is not apparent to me that the contents of the withheld information would serve to disclose information of relevance to the medication prescribed to the applicant's mother prior to her death.
Having regard to all the circumstances of the case, and bearing in mind the provisions of section 18 as outlined above, I find that the Hospital has sufficiently justified its decision to refuse to release the remaining information in the records to the applicant. Having carefully considered all the evidence before me, I am satisfied that the public interest would, on balance, be better served by refusing the request. I find that the applicant is not entitled to access the information at issue further to the 2016 Regulations made under section 37(8) of the FOI Act. Accordingly, I find that the Hospital was justified in refusing access, under section 37(1) of the Act, to the withheld information in the applicant's mother's medical records.
As I have found section 37(1) to apply to the remaining information in the relevant records, I do not consider it necessary the applicability of section 35(1)(a) to the information at issue.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Hospital's decision on the basis that section 37(1) applies to remaining information in the 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.
Mary Connery
Investigator