Decision
Mr. X and The Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-147370-H8Q9R9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-147370-H8Q9R9
Published on
Whether the HSE was justified in refusing access to certain records held in Primary Care [in a certain location] in respect of the applicant’s late father
16 April 2025
On 12 July 2023, the applicant made an eight-part FOI request to the HSE, seeking access to various records relating to his late father. This decision concerns those parts of the request concerning nursing records held in Primary Care [in a certain location].
The HSE did not issue a decision on the relevant parts of the request within the timelines set out in the FOI Act. In effect, this amounts to a refusal of access to the requested records.
On 22 August 2023, the applicant sought an internal review of the HSE’s effective decision on the records concerned. The HSE’s internal review decision of 15 September 2023 covered 192 records, all of which it withheld under section 37 of the FOI Act (personal information).
On 13 March 2024, the applicant applied to this Office for a review of the HSE’s decision. In April 2024, the HSE revised its position and part-granted the request. On 30 April 2024, the applicant confirmed that he wanted the review to examine the HSE’s redaction of details from pages 50-52 and 54 of the records under section 37 of the FOI Act. On 16 May 2024, the HSE informed the applicant that it considered section 35(1)(a) of the FOI Act (confidential information) to apply also to the details withheld from page 51.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the HSE and the applicant, to the contents of the records at issue, and to the provisions of the FOI Act.
The scope of this review is confined to the sole issue of whether the HSE was justified under the FOI Act in refusing to grant full access to pages 50-52 and 54 of the applicant’s father’s Primary Care [in a certain location] nursing records.
The review does not extend to any other matter, including the HSE’s handling of the applicant’s FOI requests and/or any apparent inconsistencies in its decision making on his requests for his father’s versus his mother’s records. In particular, this Office has no role in examining, or making findings on, the actions of the HSE or any other party in relation to the care or treatment of the applicant’s father.
The applicant’s arguments are detailed and lengthy. While it is not practicable to set them out in full, I confirm that I have examined and had regard to all of his arguments.
The applicant provides copies of various records, which he says comprise evidence of the HSE not following procedures and court rulings and not complying with the law, and evidence of carelessness, dishonesty, corruption, abuse and cover-up. He describes, inter alia, his father’s health, his ability to understand and communicate his preferences regarding medical treatments; circumstances leading to the issue to his father of a driving licence, particularly the issue of a fitness to drive certificate; his father’s account of a particular medical examination; events that he says took place during various other medical appointments; medical diagnoses; medical treatments that were advised and provided; how these treatments impacted on his father and other family members; the actions of other parties, including the person whom he says assumed the unofficial role of next of kin; differences of opinion between family members as to where the applicant’s father would be best cared for; circumstances leading to his father and his mother being admitted to respite and ultimately nursing home care; the sharing of his parents’ personal information; conversations that the applicant says he had with various nursing home staff and others; various statements made by HSE staff and others that the applicant says were false and criminally misleading; matters relating to High Court proceedings taken by the HSE, including why the applicant believes there were alleged delays in commencing these proceedings; matters relating to his parent’s deaths including the details in their death certificates; and discussions that the applicant had with the Coroner and with HIQA.
Overall, the applicant takes issue with the HSE’s care of his parents, including the legality of its decision to take them into and keep them in respite and nursing home care, and related matters. He alleges that agents of the HSE were complicit. The applicant says that Data Protection laws caused an obstacle in his attempts to hold persons to account in relation to certain matters. He says that his own right to due process and fair procedures was not upheld and that his own personal information was disclosed.
He alleges that the HSE is seeking to protect its own reputation and those of various staff. He says that the records should be disclosed to expose the true extent of what he says is the HSE’s wrongdoing in relation to his parents and family. He says that he wants access to further records to assist with Garda investigations, to appeal to the Ministers of Health and Justice in relation to the matter, and that his solicitor needs the records in order to advise him.
Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse a request, any reason that a requester gives for the request shall be disregarded. This means that in this case, I cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.
Section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. This provision also has implications for the extent to which I can describe the HSE’s submission and give reasons for my decision in this case.
Release of records under FOI is generally understood to have the same effect as publishing them to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.
I also wish to draw attention to section 22(12)(b) of the FOI Act which provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the FOI body satisfies the Information Commissioner that the decision was justified. This means that the onus is on the HSE of satisfying this Office that its decision to refuse the request was justified in this case. In the case of The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (the eNet judgment), the Supreme Court found that the head of the FOI body dealing with the request must be conscious at all stages of the process that the overriding presumption is one of disclosure, with the result that any refusal to disclose must be fully reasoned and sufficiently coherent, fact specific, and logically connected to the document or record such that the justification is sufficient.
Section 37 – personal information
Given the HSE’s position that section 37 of the FOI Act applies to all of the withheld details, I will consider this provision at the outset.
Section 37(1) – personal information
It is unclear whether the applicant disputes the HSE’s position that the withheld details consist of personal information for the purposes of section 37(1) of the FOI Act. For the sake of completeness, however, I will consider the issue.
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 (including personal information relating to a deceased individual). It is not relevant whether a requester is aware of any of the information at issue, including from any release by the FOI body of related personal information. Neither is it relevant whether the requester may have provided any of the information at issue to the FOI body.
Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including (i) information relating to the medical history of the individual and (xiv) the views or opinions of any other person about the individual. Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.
The parties’ submissions
The HSE’s submission explains why it considers the details to qualify for exemption under section 37(1) of the FOI Act. In summary, and mindful of the requirements of section 25(3), it describes the details as reflecting the Public Health Nurse’s (PHN’s) contacts, between 17 and 19 December 2018, with parties other than the applicant regarding his parents (particularly his father) and their care. It notes that the details include references to the applicant.
The applicant has made no arguments as to why the relevant details should not be considered as personal information.
Analysis
I have examined the details withheld from records 50-52 and 54 and the HSE’s submission. Mindful of the requirements of section 25(3), I agree with the HSE that the details largely concern conversations between the PHN and third parties regarding the care of the applicant’s parents, and that they also relate to the applicant. However, I note that one excerpt concerns a conversation between the applicant and the PHN about his parents and third parties.
I am satisfied that the various withheld details are of a type that meets the definitions of personal information and also that some of them are captured by one or more of the examples of what comprises personal information about identifiable individuals. 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.
I am satisfied that it is not feasible to separate out information relating solely to the applicant. Rather, I am satisfied that such information is inextricably linked to personal information about third parties (joint personal information). I should also say that I consider the details of the applicant’s discussion with the PHN to comprise joint personal information.
While the applicant may argue that he 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 full and partial access to various records concerning his late father. He has also been given similar access to records relating to his late mother, on foot of a separate FOI request. 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 his parents 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 withheld details qualify for exemption under section 37(1) of the FOI Act. I find that section 37(1) applies to the details concerned. This is subject to the consideration of sections 37(2) and (5), however.
Section 37(2) - exceptions
Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. The HSE says that none of the circumstances arises in this case. The applicant has not made any arguments in relation to section 37(2).
I note in particular that section 37(2)(a) provides for the grant of access to personal information relating to the requester. However, I am satisfied that no further information falls for release further to this provision of the FOI Act. I have already outlined the provisions of section 37(7). As also outlined above, while I am satisfied that the details comprise joint personal information, I do not consider that personal information relating to the applicant can be separated from that of other individuals.
I am satisfied that the remaining circumstances set out in section 37(2) do not arise.
Section 37(5)(a) – the public interest
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 have no reason to consider that section 37(5)(b) applies and the applicant has made no arguments to this effect.
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 an 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 the Regulations made under section 37(8), which I have explained are not relevant here) FOI is not about granting access to information to particular individuals only. Furthermore, 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 again had regard to the eNet judgment. In relevant part, 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’s arguments
The HSE says that it considered the public interests in members of the public exercising their rights under FOI and in ensuring openness and accountability. It says that it also took account of the public interest in protecting the right to privacy of third parties and deceased persons and in protecting confidential information. It refers also to the public interest in ensuring that members of the public are able to communicate in confidence in relation to personal and sensitive matters without fear of disclosure and identification. It says that the public interest weighs in favour of refusing access to the details at issue. It says that the details are private and personal in nature and notes that release under FOI is akin to release to the world at large. It says that third party privacy rights are strong and that it has a duty to maintain the confidentiality of personal information at all times.
The applicant’s arguments
The applicant says that it is in the public interest to (i) expose errors, unfairness, deception, negligence, wrongdoing and cover-up by an FOI body; (ii) ensure that an FOI body did not infringe upon the basic human rights of vulnerable persons; (iii) ensure that deprivations of liberty and medical treatment of vulnerable persons by an FOI body were in accordance with the law; and (iv) expose criminality, abuse, fraud, obstruction of justice and misappropriation of funds.
I have already described the applicant’s views on the HSE’s performance of its functions regarding the care of his parents; his view that HIQA and the Coroner’s Office have confirmed criminality; and his reasons for making his request. It seems to me that all of these are reflected in the public arguments as set out in the preceding paragraph.
Overall, it seems to me that the applicant’s public interest arguments can be summarised as saying that there is a public interest in enabling scrutiny of the HSE’s performance of its functions in relation to the applicant’s father, and in ensuring that the HSE can be held accountable for those actions, if necessary. He may also argue that, in all of the circumstances, there is a public interest in disclosing information about actions of third parties (that is, of individuals who are not HSE employees) in the matter.
Analysis
I note the HSE’s position that there is a public interest in members of the public exercising their rights under FOI. I have already referred to the comments of the Supreme Court in the eNet judgment regarding the public interest. I also note that while section 11(1) of the FOI Act provides for the right of access to records, section 11(7) provides that “[n]othing in this section shall be construed as applying the right of access to an exempt record (a) where the exemption is mandatory, or (b) where the exemption operates by virtue of the exercise of a discretion that requires the weighing of the public interest, if the factors in favour of refusal outweigh those in favour of release.” Overall, it seems to me that the FOI Act itself reflects a public interest in protecting exempt information from being disclosed to the world at large. In my view, there would have to be something more than any general public interest that may be reflected in the right of access in order to tip the balance in favour of disclosure of the details at issue in this case.
As already explained, this Office has no role in examining the HSE’s performance of its functions, including its decisions or actions regarding the care of the applicant’s father. It is also important to note here that I do not consider the applicant’s communications with HIQA and the Coroner’s Office to have the significance that he believes them to have. In my view, they amount to explanations that it is for An Garda Síochána to investigate his concerns, for instance, rather than findings of criminality.
Nonetheless, I am satisfied that there is a public interest in enabling scrutiny of the HSE’s performance of its functions in relation to the applicant’s father, and in ensuring any accountability that may be necessary in this regard. The applicant has already been given access to various records and parts of records concerning such matters. However, I accept that disclosure of the details at issue will provide some further insight in this regard. I consider that there is a commensurate weight to the public interest in their disclosure.
As set out already, I am taking it that the applicant may consider that the public interest requires disclosure of information concerning the actions or involvement of any non-HSE third parties in matters relating to the care of his father. However, it is important to note this Office’s view that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations. In general terms, it was not designed as a means by which the actions of third party individuals were to be opened up to scrutiny.
I am satisfied that disclosure of the details at issue would effectively place third party personal information in the public domain. I consider this third party personal information to be of a very private and sensitive nature, such that its disclosure to the world at large would result in significant breaches of privacy rights. I am satisfied that there is significant weight to the public interest in protecting against such breaches.
Having considered the matter, on balance, I do not consider that the public interest that the request should be granted outweighs the rights to privacy of the individuals to whom the withheld details relate. I find that the applicant is not entitled to the withheld details further to the provisions of section 37(5)(a) of the FOI Act.
In the circumstances, there is no need for me to consider the HSE’s claim in relation to section 35 of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision, on the basis that the details at issue are exempt 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.
____________________
Anne Lyons
Investigator