Decision
Ms. Z and The Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-162045-G9K1C7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-162045-G9K1C7
Published on
Whether the HSE was justified in refusing access to information in records relating to the applicant’s late mother on the basis of section 37 of the FOI Act and in refusing access to further records on the basis that they do not exist or cannot be found
3 February 2026
On 2 September 2024, the applicant made a request to the HSE for all medical records and correspondence relating to her late mother’s medical diagnosis, treatment, and medication while she was an inpatient at Our Lady’s Hospital, Lee Road, Cork between approximately 1952 and 1964. The applicant also specifically requested records indicating the circumstances of her mother’s admission to Our Lady’s Hospital.
On 13 March 2025, the HSE part granted the applicant’s request. It identified 12 records; amounting to 16 pages, as falling within the scope of the applicant’s request. It granted access to these records, with certain information refused on pages 1 and 14 of the records on the basis of sections 35(1) and 37(1) of the Act; relating to information provided in confidence and personal information respectively.
On 1 April 2025, the applicant’s legal representative made a request on her behalf for an internal review of the HSE’s decision.
On 24 April 2025, the HSE’s internal reviewer affirmed its original decision to refuse access to certain information on pages 1 and 14 of the relevant records. However, the internal reviewer indicated that the sole basis for this refusal was section 37 of the Act and reliance was no longer placed on section 35 to refuse access to any information in the records.
On 2 September 2025, the applicant applied to this Office for a review of the HSE’s internal review decision, maintaining that there ought to be further records and contesting the redactions made in the records released to her.
I have now completed my review in accordance with section 22(2) of the FOI Act. During the course of this review, the Investigating Officer provided the applicant with details of the HSE’s submissions and offered her an opportunity to respond, which she duly did. While I do not intend to repeat either the HSE’s submissions or those of the applicant in full here, I can confirm that I have had regard to both for the purposes of this review. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The applicant’s position is that further relevant records ought to exist. Accordingly, this review is concerned with whether the HSE has carried out all reasonable searches under section 15(1)(a) of the Act to locate further records within the scope of the applicant’s request.
The applicant also contests the redactions made by the HSE in the records it released to her. This review is therefore also concerned with whether the HSE was justified in redacting certain information under section 37(1) of the Act from those records it released when processing the applicant’s request.
At the outset, I wish to make a number of preliminary comments.
First, in her submissions to this Office, the applicant mentioned the difficult circumstances that surrounded her mother’s hospitalisation and the life-long, traumatic personal impact this has had on her, the applicant. I fully appreciate the suffering that this situation has caused and continues to cause the applicant. However, section 13(4) of the FOI Act provides that, subject to the legislation, 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. Thus, while certain provisions of the FOI Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
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 takes the view that 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 sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or ‘dissecting’ of records to such an extent.
Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and to the reasoning used by the decision maker in arriving at his/her decision and must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the records management practices of the FOI body, insofar as those practices relate to the records in question.
The HSE began by providing some background information regarding the management of Our Lady’s Hospital and its record management practices for the timeframe under review: 1952-1964. It said that Our Lady’s Hospital was previously known as the Cork Mental Hospital. It said that, besides a brief period from 1925 to 1928, the management of the Cork Mental Hospital was undertaken between 1898 and 1960 by a Joint Committee of Management. The HSE went on to say that in 1952 the name was changed to Our Lady’s Psychiatric Hospital. According to the HSE, the 1960s saw the Hospital’s management transferred to the Cork Health Authority and in 1970, health services were removed from the local authority system and re-organised as eight regional health boards under the Department of Health. The HSE said that Our Lady’s Hospital was managed from the 1970s by the Southern Health Board and that the Hospital eventually closed in 1988.
According to the HSE, in 1991; three years after the hospital closed, some of the records from Our Lady’s Hospital were transferred to the Cork Archives Institute, now Cork County and City Archives. The HSE confirmed that the latter records are no longer under the control of the HSE but belong to the Cork County and City Archives. The HSE added that the records of the applicant’s deceased mother would not have been among those transferred, due to their comparatively recent nature.
The HSE further said that in 1999 a Policy for Health Boards on records retention periods was created which outlined the retention and disposal schedule for records held by Irish health boards at that time. Whilst the HSE said that it was no longer able to access this 1999 Records Retention Policy, it said that its 2013 Record Retention Policy states that records relating to persons with a mental disorder (within the meaning of the Mental Health Acts 1945 to 2001) should be destroyed eight years after the death of the patient. The HSE said that, theoretically, this means that the records under review in this case should have been destroyed in 1972. The HSE added that its current retention policy has the same retention period as the 2013 version.
The HSE provided details on the searches it carried out in order to locate relevant records. It said that its first step was to check the “All Notes” Excel spreadsheet which was used to record details of service users who availed of services that fall within the geographical area of what is today North Lee Mental Health Services (NLMHS). The HSE said that the “All Notes” spreadsheet contains information such as:
• Patient RID/MRN Number
• Iron Mountain Box Barcode (in relation to the box that the file is stored in Iron Mountain)
• Surname
• First Name
• Address (at time of entry on spreadsheet)
• Date of Birth
• Date of Death if applicable
The HSE said that it searched the spreadsheet using the following criteria:
• Surname [Applicant’s mother’s surname]
• First Name [Applicant’s mother’s first name]
• Address [Applicant’s mother’s address]
• Date of Birth [Applicant’s mother’s date of birth]
• Date of Death [Applicant’s mother’s date of death]
The HSE explained that, as no entry was found, a second search was carried out using surname and first name only. The HSE said that this search located one record on the “All Notes” spreadsheet, although the date of birth and date of death did not match the relevant dates for the applicant’s late mother. Furthermore, the Barcode column which contains the actual box number in the offsite storage facility was blank. To support the above, the HSE submitted a screenshot showing results from the Excel sheet search it had carried out.
The HSE went on to say that, as there was no Barcode Box Number listed in the “All Notes” spreadsheet, another Excel spreadsheet, called “Barcodes for North Lee”, was searched. The HSE said that the “Barcodes for North Lee” Excel spreadsheet was used to record files sent to Iron Mountain/Secure Document Storage. According to the HSE, the Excel sheet contains the Iron Mountain Box Barcode Number, and a list of the files/file numbers that are stored within this box. The HSE said that this spreadsheet was searched using the MRN number (refers to RIP files) and that one entry was found. In support of the above, the HSE submitted a screenshot showing results from the Excel sheet search it had carried out.
The HSE said that the relevant box was retrieved from Iron Mountain and that the contents of this box were searched for records that may relate to the applicant’s mother. The HSE said that one file was found, and that it contains 16 pages of records, the records partly released to the applicant. The HSE said that it is worth noting that there are 39 files in the box and that all the other files have roughly the same number of pages as the file under review. The HSE went on to say that on 18 November 2025, the contents of the same box were retrieved from Iron Mountain again just in case some records had been missed during the original FOI processing. The HSE confirmed that it had carried out a thorough search of all files contained in the box but that no other records relating to the applicant’s deceased mother were found.
The HSE said that the outside cover of the file in question is in very good condition and that all the records were held together by old thumb tacks which, according to the HSE, indicates that the file itself has remained intact and also indicates that there are no missing records or loose pages. The HSE said that it is satisfied that this file is the entire casefile for the applicant’s mother. The HSE said that Record 2 in the file comprises the clinical entries from the date of admission in August 1952 until August 1962. It said that Records 6-12 contain clinical entries for 1962 up to the time of death in August 1964.
The HSE concluded that, based on the searches that have been carried out and given the timeframe associated with this particular case, in its view all reasonable searches have been carried out for records falling within the scope of the applicant’s request and that it is highly unlikely that any other records are held by the HSE.
In her application to this Office, the applicant maintained that the HSE has only released a limited amount of documentation to her. In subsequent submissions to this Office, she said that she had received very little from the HSE and concluded that that the rest of her late mother’s records must be in the possession of the HSE.
The HSE’s position is that it has carried out all reasonable searches, and that no further relevant records exist or can be found. The applicant’s position is that further relevant records ought to exist.
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should or might exist.
The question I must consider is whether the HSE has justified its position that it has undertaken all reasonable steps to locate the records sought by the applicant. As outlined above, the HSE has explained how it stores and records files of this age and has provided a detailed account of the searches it said it carried out in order to locate them. Although the applicant considers that there ought to be further records, she has not provided any information that would indicate what these records may be or where they might be located. Therefore, in light of the HSE’s submissions and in the absence of any evidence to suggest that further searches are warranted in this case, I am satisfied that the HSE has demonstrated that it has taken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why no records can be found other than those released to her at original decision stage.
Accordingly, I find that the HSE is justified at this time in refusing access to further records coming within the scope of the applicant’s request under section 15(1)(a) of the FOI Act on the basis that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
However, that is not the end of the matter as the applicant also sought a review of the information which the HSE redacted, under section 37 of the FOI Act, in the records that it released.
Section 37 – Personal Information
In the records that have been identified by the HSE and released to the applicant, a very small amount of information has been withheld on pages 1 and 14 on the basis of section 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, including personal information relating to a deceased individual. This does not apply where the information involved relates to the requester (section 37(2)(a) refers).
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. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition, including (i) information relating to the medical, psychiatric or psychological history of the individual and (xiv) the views or opinions of any other person about the individual.
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the information at issue is limited.
In its submissions to this Office, the HSE said that its position is that none of the withheld information on pages 1 and 14 should be released to the applicant as these records contain personal information which is either the personal information of third parties alone or personal information of the deceased that is intertwined with the personal information of third parties or personal information that jointly relates to the deceased, the applicant and other third parties. The applicant for her part said that the records are her property and that she is entitled to all of them, as the deceased was her mother.
Having viewed the records in question, I am satisfied that the information withheld is the personal information of the deceased and other third parties. A small amount of the information also relates to the applicant. Furthermore, I am satisfied that even if the third party names were to be redacted, individuals would be identifiable from the context and content of the remaining details.
Both the information relating to the applicant and the information relating to the deceased is interwoven with information relating to the other third parties. I am satisfied that it is not feasible to separate out information relating solely to the applicant and/or her late mother. Rather, I am satisfied that such information is inextricably linked to personal information about third parties and as such comprises joint personal information. I have taken account of section 18 as referred to earlier in this decision. I am satisfied that extracting the occasional phrase or word is not practical.
While the applicant may argue that she is entitled to joint personal information, the provisions of section 37(7) of the FOI Act are relevant. Section 37(7) provides that, notwithstanding section 37(2)(a) (see below), access to a record shall be refused where access to it 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.
As outlined, the applicant has been given partial access to various records concerning her late mother. Regulations made under section 37(8) of the FOI Act provide for the release of information about deceased persons to certain categories of requester (such as the next of kin) in certain circumstances. However, the Regulations do not entitle an applicant to access to personal information about any other individuals. In this case, I am satisfied that it is not feasible to separate out information relating solely to the applicant and/or her mother from the other withheld details. In my view, such details are inextricably linked to personal information about third parties. In such circumstances, I am satisfied that I do not need to consider the Regulations made under section 37(8) in this case.
I am satisfied that the HSE has justified its position that the information withheld on pages 1 and 14 of the records qualifies for exemption under section 37(1) of the FOI Act. I find that section 37(1) applies to the details concerned.
However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section. Accordingly, 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 information at issue.
Section 37(2) provides that section 37(1) does not apply if:
(a) the information concerned relates to the requester concerned,
(b) the individual to whom the information relates consents, in writing or other such form as may be determined, to its disclosure to the requester,
(c) information of the same kind as that available 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 it 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.
The purpose of section 37(2)(a) is to ensure that section 37(1) cannot apply to information relating solely to the requester. As noted above, I am satisfied that the withheld information in the records that relates to the applicant is inextricably linked with personal information relating to third party individuals. I am satisfied, therefore, that section 37(2)(a) does not apply. No argument has been made that any of the circumstances outlined above at subsections (b) to (e) are relevant in this case, nor do I consider any to apply.
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.
No argument has been made that section 37(5)(b) applies in this case and I am satisfied that it does not.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, as referred to above, 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 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 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) and the 2016 Regulations, 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 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 that “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.
In its submissions, the HSE said that it accepts that there is a public interest in FOI bodies such as the HSE being open and transparent about how services that affected vulnerable individuals were conducted in the 1950s and 1960s. The HSE also accepts that there is a public interest in it providing a full account of what happened to vulnerable individuals when they were admitted to State-funded facilities under the Mental Health Act 1945 in the 1950s and 1960s. However, it also considers that there is a strong public interest in protecting the right to privacy of other parties and in ensuring that public bodies respect the right of third parties in ensuring that their personal information remains confidential. It further considers that there is a significant public interest in protecting the confidentiality of information which was provided to the health services in respect of very sensitive matters and in ensuring that members of the public are able to communicate in confidence with the public body in matters relating to personal and sensitive matters and the allaying of concerns in relation to matters without fear of disclosure and identification.
The HSE said that all of the information withheld on pages 1 and 14 of the released records is either the information of other third parties or information that is jointly held by the applicant, the deceased and other third parties. The HSE stated that, whilst it has great sympathy for the applicant in her quest to find out as much information as possible about her late mother, having reviewed the limited amount of information that is being withheld, it does not agree that releasing the information in question is in the public interest. The HSE said that the public interest in preserving the privacy of the third parties outweighs the public interest that would be served were the withheld information to be released to the applicant.
I accept that there is a public interest in individuals ensuring that information held about them is accurate and in enhancing the transparency and accountability of public bodies such as the HSE. It seems to me that those interests have been served to a significant degree by the release of the vast majority of the information within the records relating to the applicant’s late mother. It is not apparent to me that the release of the withheld information at issue would further enhance that transparency and accountability to any significant degree. The question I must consider is whether those public interest factors in favour of release of the withheld information outweigh, on balance, the privacy rights of the relevant third parties. In my view, they do not.
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 it 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 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). While I accept that some of the information is not of a particularly sensitive nature, I must have regard to the fact that the release of the records must be regarded, in effect, as release 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 information at issue outweighs, on balance, the privacy rights of the relevant third parties. 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. Accordingly, I find that section 37(5) does not serve to disapply section 37(1) in respect of the information at issue.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision. I find that the HSE is justified in refusing, under section 15(1)(a) of the FOI Act, the applicant’s request for further records relevant to her request on the grounds that no further records exist or can be found. I also find that the HSE was justified in refusing access to information on pages 1 and 14 of the records identified under section 37(1) of the FOI Act.
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.
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Mary Connery
Investigator