Decision
Ms. X & Health Service Executive (the HSE)
From Office of the Information Commissioner (OIC)
Case number: OIC-157386-K1X8Z4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-157386-K1X8Z4
Published on
Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator who is authorised by the Information Commissioner to conduct this review
31 October 2025
This review has its background in a previous decision this Office issued on 1 November 2024 in Case No. OIC-148143. In that decision, we annulled a decision of the HSE to refuse the applicant’s request for a copy of her late father’s medical files as we found that it had not properly considered the relevant Regulations governing the release of records relating to deceased individuals and we directed the HSE to consider the request afresh. It did not do so. Regardless, the applicant submitted a fresh request to the HSE on 15 January 2025 for those same records.
The HSE issued its decision on that second request on 30 January 2025 wherein it indicated that having had regard to the relevant Regulations, it had decided to refuse the request under section 37(1) of the FOI Act. The applicant sought an internal review of the HSE’s decision to refuse her request. Among other things, she said she was the executor of her father’s estate and that the records should be released to her. On 24 February 2025, the HSE issued its internal review decision wherein it affirmed its refusal of the request under section 37(1). On 12 March 2025, the applicant applied to this Office for a review of the HSE’s 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 by the HSE and to the decision-making records. 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 concerned solely with whether the HSE was justified in refusing the applicant’s request for access to her late father’s medical records under section 37(1) of the FOI Act.
Before commencing my analysis, I wish to comment on the HSE’s failure to consider afresh the applicant’s original request as we directed in our decision in Case OIC-148143. In its communications with this Office, the HSE said it failed to follow up on the decision due to a change of staff. As the HSE is well aware, under section 22(14) of the FOI Act a decision issued by this Office following a review is binding, subject only to appeal to the High Court on a point of law. It is unacceptable that the HSE does not have a robust process in place to ensure that all binding decisions are acted upon, and that the applicant had to go to the trouble of making a fresh request for the same records. I expect the HSE to put appropriate measures in place to ensure that this not happen again.
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 records sought in this case comprise the medical records of the applicant’s late father. I am satisfied that the release of the records would involve the release of personal information relating to her late father 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) 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 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 circumstances outlined above are relevant in this case, nor do I consider any to apply. I find, therefore, that section 37(2) does not apply
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. No argument has been made in relation to section 37(5)(b) in this case and I am satisfied that it does not apply.
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 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 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 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 “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.
While the applicant did not identify any specific public interest factors in favour of the release of the records at issue, I note that in her correspondence with the HSE and with this Office, she said her father died in hospital and she believed her father would have wanted her to know what happened to him. She said she wanted to get to the bottom of things. I also note that in her decision in Case OIC-148143, the relevant Investigator noted that the applicant appeared to have concerns around the level of care afforded to her late father in the hospital. As the Investigator explained in that case, the applicant’s reasons for wanting access to the records are reflective of a public interest in ensuring that vulnerable individuals are afforded appropriate levels of care and treatment while in hospital.
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 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 the release of the records at issue would serve to somewhat enhance transparency around the levels of care and treatment afforded to patients in hospital settings, this must be balanced against the highly sensitive and private nature of the records and to the fact that I must regard their release under section 37(5)(a) as being effectively, or at least potentially, release to the world at large. In the circumstances, I do not accept that the public interest in releasing the records outweighs, on balance, the privacy rights of the applicant’s late father. I find, therefore, that section 37(5)(a) does not apply.
Section 37(8)
Section 37(8)(a) provides that, notwithstanding subsection (1), the Minister of Public Expenditure and Reform (the Minister) may provide by regulations for the grant of a request where the individual to whom the record concerned relates is deceased. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (the 2016 Regulations). The 2016 Regulations provide that notwithstanding section 37(1), a request may be made for records which involves the disclosure of personal information relating to a deceased individual and shall, subject to the other provisions of the FOI Act, be granted, where the requester belongs to one or other of the following classes:
(i) a personal representative of the deceased individual acting in due course of administration of the individual's estate or any person acting with the consent of a personal representative so acting,
(ii) a person on whom a function is conferred by law in relation to the deceased individual or his or her estate acting in the course of the performance of the functions, or
(iii) 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 2016 Regulations. The Minister’s Guidance note states 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 records are inherently private, and of a very sensitive nature, then they are not likely to be released unless there are compelling reasons for so doing. It says that such reasons might include the release to a blood relative of records that show a hereditary medical condition. In relation to medical records specifically, the Guidance says 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 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.
In her correspondence with this Office, the applicant said her father would have wanted her to have access to his medical records. She said he never signed any forms stating that he did not want anyone to see his files. She said she was the executor to his estate.
The HSE made submissions in support of its position that, having regard to all the circumstances, the public interest would on balance be better served by refusing to grant the request. Before I outline any details of those, I must point out that although I am obliged to give reasons for my decisions, this is subject to the requirement, under section 25(3), that in the performance of its functions under this Act, this office must take all reasonable precautions to prevent the disclosure of information contained in an exempt record or information that, if it were included in a record, would cause the record to be an exempt record. This means that the details I can give of the HSE’s submissions and the reasons I can give for my findings are quite limited.
In its submissions, on the matter of whether the deceased would have consented to the release of the records to the applicant when living, the HSE said the records clearly indicate that the deceased expressed concerns regarding his privacy. It said it is evident from the records that he was assertive in exercising his rights concerning his care and the management of his illness and that he demonstrated independence and a preference for handling matters in his own manner. It said the records note the existence of family issues, although the specifics remain unclear. It said the records do not indicate that the applicant was involved in her father's care during his hospitalisation or his brief illness. It indicated that during his stay, the applicant’s father made specific provisions in relation to discussions in respect of his care. It said the deceased made informed choices regarding the management of his condition and determined who he wished to keep informed about his health status during this period. It said it is not recorded within the records that he expressed a desire for the applicant to be involved in this aspect of his life. It said that after reviewing all this information, it concluded that the deceased would not have consented to sharing his medical information with the applicant.
My Analysis
I fully accept that the applicant wishes to have access to her late father’s records to allow her to consider the level of care afforded to him in the hospital and to better understand the circumstances of his death. The question I must consider, however, is whether, having regard to all the circumstances, the public interest would on balance be better served by granting than by refusing to grant the request. On this point, a key issue arising, in my view, is whether the deceased would have consented to the release of the records to the applicant when living. While I am, regrettably, constrained by section 25(3) in the reasons I can give, I am of the view that he would not have so consented. I can say that having examined the records at issue, I believe they reflect the wishes of the applicant that access to his inherently private and sensitive medical information be restricted and that they do not support the applicant’s contention that he would have wanted her to see them.
Accordingly, I am satisfied that the HSE was justified in arriving at its decision that having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would not be better served by the release of the records to the applicant in this case. I find that the applicant the 2016 Regulations do not provide for a right of access in this case. In conclusion, therefore, I find that the HSE was justified in refusing access, under section 37(1) of the Act, to the records sought.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Hospital’s decision. I find that the Hospital was justified in refusing the applicant’s request for access to the medical records of her late father 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.
Stephen Rafferty
Senior Investigator