Decision
Mr X & Mr. Y and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-150444-G1Z2Z5 & OIC-150445-M4S6H5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150444-G1Z2Z5 & OIC-150445-M4S6H5
Published on
Whether the HSE was justified in refusing access to medical records relating to an individual other than the applicants on the basis of section 37 of the FOI Act
4 February 2025
In a joint request dated 7 May 2024, the applicants, who are brothers, sought access to records relating to telephone calls and minutes of meetings with members of their family as well as specified correspondence from named medical professionals. The records at issue substantially relate to medical care provided to an individual other than the applicants.
On 10 June 2024, the HSE issue a decision in the matter. A total of 52 pages were identified as falling within the scope of the applicants’ request. The decision-maker refused access to all records on the basis that the information contained in the records comprised the personal information of individuals other than the applicants.
On 19 June 2024 the applicants sought an internal review of this decision and on 5 July 2024 the internal reviewer affirmed the original decision.
On 10 July 2024 the applicants applied to this Office for a review of the HSE’s decision. On receipt of the applicants’ request, this Office created two casefiles; one for each of the applicants. However, the request as initially submitted to the HSE was a joint request and the appeal to this Office was made in the joint names of the applicants, and therefore I consider it appropriate to treat the matter as one composite application.
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 applicants’ comments in their application for review and to the submissions made by the HSE in support of its decision. 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 solely concerned with whether the HSE was justified in refusing access to certain records identified as falling with the scope of the applicants’ request on the basis of section 37(1) of the FOI Act.
Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
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.
Finally, 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 records is limited. Similarly, the provision has implications for the extent to which I can give reasons for my decision.
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. 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/individuals other than the requester. This is commonly known as ‘joint personal information’.
For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily 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. The Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual, and (xiv) the views or opinions of another person about the individual.
In its submissions to this Office, the HSE said the records at issue are the confidential medical records of an individual other than the applicants. More specifically, it said that the records relate to the medical care provided to the applicants’ mother by its mental health services. As such, it said that the records relate to a private aspect of her life and are inherently sensitive and confidential. The HSE further said it is of the opinion that the release of the records at issue to the applicants may be prejudicial to the mental health of their mother. In support of this position, it supplied a letter from a medical professional treating the applicants’ mother who stated that it was his understanding that the applicants’ mother had left the family home and it is likely that the release of the records at issue would have a significant negative impact on her mental health.
The HSE further indicated that there is certain information relating to the applicants in the records at issue. However, it further said that such information is inextricably linked with information relating to their mother such that it would not be feasible to separate out the information relating to the applicants. As such, it considers that the provisions of section 37(7), relating to joint personal information, are of relevance.
I have carefully examined the records at issue. While I am constrained by the requirements of section 25(3) in the description I can give of the information contained in these records, I can say that they relate to the medical history of the applicants’ mother and include information relating to care provided by mental health services. In addition, in certain cases, the records comprise correspondence sent by the applicants to medical professionals treating their mother. However, the fact that the applicants may be aware of the contents of certain records or may have been involved in matters detailed therein does not serve to disapply section 37.
Having carefully considered the matter, I am satisfied that release of the information contained in the relevant records would involve the disclosure of personal information of individuals other than the applicants and that section 37(1) therefore applies. In particular, I am satisfied that much of the information contained in the records comprises sensitive medical information relating to the applicants’ mother and this is her personal information.
I am also satisfied that some of the information in the records relates to the applicants themselves. However, the net effect of section 37(7) as set out above, is that, where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information relating to another party or parties, and where it is not feasible to separate the personal information relating to the requester from that relating to the other party or parties, it can be described as joint personal information and section 37(7) must be considered. Having carefully considered the matter, I take the view that it is not practicable to separate the personal information relating to the applicants from that relating to their mother and to other third party individuals. As such, I consider that such information is joint personal information for the purposes of section 37(7) of the FOI Act.
I find therefore that section 37(1) applies to all of the information at issue.
As section 37(1) of the Act is subject to the other provisions of the section, I must proceed to consider whether any of those other provisions serve to disapply section 37(1) in respect of any or all of the above information.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise 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 information would be to the benefit of the person to whom the information relates. I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.
In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.
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 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 applicants’ motives for seeking access to the information 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 the release of the records, i.e. in so far 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 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, 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 its submissions, the HSE said that the right to privacy of the applicants’ mother to whom the information relates is a significant public interest factor against release. It said that in light of the inherently sensitive nature of the information concerned, it is not in the public interest for the information sought to be released.
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.
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 records at issue relate to the very sensitive medical records of an individual other than the applicants. These records are of an inherently private and sensitive nature and I must regard their release as being effectively, or at least potentially, to the world at large. Having considered the matter, and bearing in mind the strong public interest in protecting the right to privacy, I do not accept that the public interest in releasing the records outweighs, on balance, the privacy rights of the relevant third parties. In particular, I am not satisfied that any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information at issue exists in this case. 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 affirm the HSE’s decision.
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