Decision
Ms. X & St. James's Hospital (the Hospital)
From Office of the Information Commissioner (OIC)
Case number: OIC-158223-Q3P9Q9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-158223-Q3P9Q9
Published on
Whether the Hospital was justified in refusing the applicant direct access to certain of her medical records under section 37(3) of the FOI Act on the ground that disclosure of the information may be prejudicial to her physical or mental health, well-being or emotional condition
24 October 2025
On 11 June 2024, the applicant made a request to the Hospital seeking access to all her records since 2020. The applicant noted she was particularly interested in records from Psychiatry, the Emergency Department (ED), and Social Work. The applicant’s request was the subject of a previous review by this Office, case reference OIC-153081-Q7X3L6, as outlined below.
After issuing an original decision and affirming that decision at internal review, the Hospital said it had released all relevant records to the applicant and therefore refused the release of further records under section 15(1)(a), on the grounds that no further relevant records exist. On 22 October 2024, the applicant applied to this Office for a review of the Hospital’s decision and maintained that the records she received were incomplete. During the course of our review Office of case OIC-153081, the Hospital said it had identified further relevant records held by the Jonathan Swift Clinic. The Hospital said that the release of these further records was subject to the consideration of the relevant clinical team. On 29 January 2025, in my decision on case OIC-153081, I annulled the Hospital’s decision to refuse access to further records under section 15(1)(a), as it was clear that further relevant records existed. I directed the Hospital to make a fresh decision on the applicant’s request. The Hospital’s decision in respect of the additional records it located during the course of case OIC-153081 is now the subject of this present review.
On 4 March 2025, after receiving no decision on the additional records located by the Hospital, the applicant requested an internal review. On 11 April 2025, the Hospital re-released records relating to the applicant’s ED attendance but decided to refuse access to the remaining records under section 37(3) of the FOI Act, following the advice of a named Consultant Psychiatrist. The Hospital stated that the records were of a medical and psychiatric nature and the disclosure of the information may be prejudicial to the applicant’s mental health, well-being, or emotional condition. In its decision, the Hospital said the Consultant Psychiatrist is willing to meet with the applicant and go through the records with her as a form of mediated access to the records. On 14 April 2025, the applicant applied to this Office for a review of the Hospital’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 correspondence outlined above and to submissions made by the Hospital and the applicant. 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 the Hospital was justified in refusing the applicant direct access to her records held by the Jonathan Swift Clinic under section 37(3) of the FOI Act.
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.
Section 37(3)
Section 37(3)(a) of the FOI Act provides that a public body may refuse a request for records of a medical or psychiatric nature relating to the requester if it considers that disclosure of the information concerned to the requester might be prejudicial to his or her physical or mental health, well-being or emotional condition. Where it refuses a request under subsection (3), it must offer access to such health professional having expertise in relation to the subject matter of the records as the requester may specify (subsection (4) refers).
This Office considers that the intention of section 37(4) is to allow an appropriate health professional with relevant expertise to decide how sensitive information should be made available to requesters in such a manner that seeks to avoid the harms identified in section 37(3). It is noteworthy that the threshold for meeting the exemption in section 37(3) is quite low as it is sufficient for the body to show that release of the records might give rise to the harm identified. Nevertheless, this Office considers that where section 37(3) is relied upon to refuse direct access to a record, there must be evidence to support the opinion that there is a real and tangible possibility of harm being caused to the physical or mental health, well-being, or emotional condition of the requester as a result of direct access to the record in question. It is not in dispute that the records at issue are of a medical or psychiatric nature relating to the applicant.
In its submissions to this Office, the Hospital outlined the searches that it undertook when it received the applicant’s request which ultimately resulted in it locating relevant records held by the Jonathan Swift Clinic. The Hospital said that it is the process of the Access to Information Office that, where clinical records contain information relating to attendances at the psychological/psychiatry service, the treating Consultant is contacted for input into the decision-making process in relation to the suitability to release the records. The Hospital stated that the Consultant did not approve release of the records directly to the applicant but offered to meet with her to explain the records. The Hospital added that this offer was communicated to the applicant. It said that it is the Consultant Psychiatrist’s opinion that it could be emotionally distressing for the applicant to access the records directly, but the offer remains for her to meet with the Consultant to go through the relevant records.
The Investigating Officer asked the Hospital if it would be willing to release the records to an appropriate healthcare professional of the applicant’s choosing, as per section 37(4). The Hospital responded by saying that it would also be willing to allow access to the records via a healthcare professional of the applicant’s choosing, whether this is the named Consultant Psychiatrist or an appropriate alternative. This is consistent with the Hospital’s position in a previous case the applicant had with this Office (case reference OIC-156539-Y3N3S4), wherein I also affirmed the Hospital’s decision to refuse the applicant direct access to certain medical records.
At the conclusion of its submissions, the Hospital said that the contents of the folder were exempted from release as a whole. It stated that correspondence in the folder which was addressed to the applicant and which she had sight of was not considered for release. It said that only documents which were filed under the applicant’s medical record number were released to her.
In her submissions to this Office, the applicant provided copies of two records of correspondence between herself and the Hospital. She said these records show that the Hospital refused access to records that she already has but are still in scope of her request. The applicant stated that these should not have been refused from release under section 37(3).
The Investigating Officer raised this with the Hospital and asked if it would be willing to release the records of correspondence from the folder which were addressed directly to and from the applicant. The Investigating Officer, having viewed the records, noted that the applicant seemed to have copies of some of the correspondence herself, and so it was not clear why the Hospital had used section 37(3) to refuse these particular records.
The Hospital responded by saying that it was willing to release the records of correspondence to and from the applicant rather than refusing the contents of the Jonathan Swift folder as a whole under section 37(3). I understand that these records were released to the applicant on 11 September 2025. Accordingly, it is not necessary for me to consider access to the records recently released to the applicant any further.
My decision in this case solely concerns the Hospital’s decision to refuse access to the remaining medical records from the Jonathan Swift Clinic that it refused under section 37(3) of the Act.
As noted above, I am limited in the reasons I can give for my decision in this case and of the description I can provide about the content of the records at issue. Having considered the submissions of both the Hospital and the applicant, I am satisfied that the Hospital was justified in refusing the applicant direct access to the relevant medical records under section 37(3) of the Act.
As noted above, the Hospital said it is happy to engage with the applicant in relation to her nominating a health professional of her choosing as per section 37(4). Whether that is the named Consultant Psychiatrist, or another appropriate health professional is up to the applicant and the Hospital to arrange. This Office does not have a role in organising the logistics of arranging access to the records. Having found that the Hospital was justified in refusing the applicant’s request under section 37(3), I suggest that the applicant contact the Hospital if she wishes to nominate an appropriate health professional to access her records, or indeed if she wishes to avail of the Hospital’s initial offer to meet with the Consultant to go through the records.
Having considered the matter carefully, I affirm the Hospital’s decision to refuse access to the remaining medical records from the applicant’s Jonathan Swift Clinic file under section 37(3) of the Act, subject to facilitating access via an appropriate medical professional should the applicant choose to avail of this option.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Hospital’s decision under section 37(3) 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.
____________________
Richard Crowley
Investigator