Decision
Mr O and St. John of God Services
From Office of the Information Commissioner (OIC)
Case number: OIC-156622-W7T6F1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-156622-W7T6F1
Published on
Whether SJOG 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
19 August 2025
In a request dated 31 October 2024, the applicant (and his spouse) sought access to his deceased adult daughter’s case records and medical file in connection with her care and treatment with SJOG. In a decision dated 16 December 2024, SJOG refused the request under sections 35(1)(a) and 37(1) of the FOI Act. On 24 December 2024, the applicant sought an internal review of that decision. As SJOG failed to issue an internal review within the statutory time-frame, the applicant applied to this Office for a review on the basis of that non-reply. On 13 February 2025, and on foot of a direction from this Office, SJOG issued its effective position to the applicant. It affirmed its refusal of the request under sections 35(1)(a) and 37(1) of the Act. On 03 March 2025 the applicant applied to this Office for a review of that 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 SJOG. 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 SJOG was justified in refusing access, under sections 35 and/or 37 of the FOI Act, to the medical records of the applicant’s deceased daughter.
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 in the records relates to the applicant’s daughter, some of which is intertwined with the information of third parties. I am satisfied that the nature of the information is such that all of the information in the records comprises personal information relating to the applicant’s daughter. I find, therefore, that section 37(1) applies to all of the records at issue. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37, which I will consider 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.
In his application to this Office the applicant noted that in its effective position letter of 13 February 2025, SJOG referenced a previous decision of this Office (in Case OIC-147334) in support of its fining that the public interest was best served by the refusal of the request. He said that while this Office upheld the FOI body’s decision in that case, it doesn’t give SJOG an option to simply refuse all requests for a deceased person’s records. He said each case must be determined on its own merit based on the content of the records concerned. He said there may be records in his late daughter’s file that were given in confidence but that it is unlikely that absolutely everything in it was given in confidence.
In subsequent submissions, the applicant said his daughter died by suicide while under the care of SJOG for the last 7 years and that he and his wife have still not met with her treating consultants or received a diagnosis despite repeated pleas. He said his daughter’s siblings would also like to know what their sister’s diagnosis was and what she was being treated for.
SJOG said it considered that the public interest would be better served by refusing the request. It said it considered the following factors in favour of withholding the records:
• The public interest in protecting the right to privacy of service users.
• The public interest in service users being able to communicate in confidence with public bodies and without fear of disclosure in relation to personal or sensitive matters.
• The public interest in public bodies being able to perform their functions effectively, the provision of our healthcare service relies heavily on upholding the confidentiality of service users.
I fully accept that there is a strong public interest in family members being informed about the circumstances of the death of their loved ones and of the level of care and treatment afforded by SJOG to them up to the time of their death. 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, concerning the mental health of the applicant’s daughter and her care and treatment, 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 pursuant to section 37(5)(a) must be regarded as being effectively or at least potentially to the world at large, I am not satisfied that the public interest that would be served by the release of the records at issue in this case 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 FOI Act provides that, notwithstanding subsection (1), the Minister for Public Expenditure, NDP Delivery, 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 deceased 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)), as amended. The 2016 Regulations provide for the grant of a request for the records of a deceased individual where the requester is 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.
SJOG accepts that the applicant is the next of kin in this case. It is important to note that the fact that the applicant is the next of kin of the deceased does not mean that he is automatically entitled to access the records. The issue 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. As the Regulations require that regard must be had to "all the circumstances", relevant circumstances cannot be excluded solely on the basis that they are not public interest factors.
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 suggests 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.
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 - 9th edition published in 2024 (‘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’s family or carers, along with the effect of disclosure on the reputation of the deceased and the purpose of the disclosure.
I should state here that while I am required to give reasons for my decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. This means that the reasons I can give for my decision in this case are quite limited as is the extent to which I can describe the contents of the records at issue.
In its submissions, SJOG said it considered the confidentiality of personal information as set out in section 37(1) of the Act. It referenced extracts from the records which it considers to support its view that the deceased would not have consented to the release of the records. It said it considered the effect of release of the records on the good name and character of the deceased. It said the inherent nature of medical records is that the information contained within will be treated in confidence. It said this ensures that service users can speak freely on a broad range of topics in the course of their care. It said the records also include session and case notes in which the deceased discussed her family life and her relationship with her parents and siblings. It noted that a letter of diagnosis was provided to the applicant on 23 January 2025.
While I believe I am prohibited by section 25(3) from providing a more detailed explanation, I can say I am satisfied that SJOG was justified in finding that the contents of the records support its view that the deceased would not have consented to the release of the records to the applicant. Having regard to that fact, and to the inherently private and sensitive nature of the records, I am satisfied 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 SJOG 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 decision of SJOG 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