Decision
Mr. X and The Health Service Executive (HSE)
From Office of the Information Commissioner (OIC)
Case number: OIC-153921-F9V2Z7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-153921-F9V2Z7
Published on
Whether the HSE was justified in refusing access, under section 37(1) of the FOI Act, to records concerning the outcome of a safeguarding assessment relating to the applicant’s mother
3 September 2025
In a request dated 17 May 2024, the applicant sought access to the outcome of a safeguarding investigation in respect of his mother. In a decision dated 21 June 2024, the HSE refused access to the entire safeguarding file under section 37(1) of the FOI Act.
On 5 July 2024, the applicant sought an internal review of that decision. He said he was seeking access to the records under section 37(8) of the FOI Act as his mother’s guardian. He said he was her only child and that he had an Assisted Decision-Making Capacity Application before the Circuit Court. He also included a letter of consent to the release of the records signed by his mother. On 9 August 2024, the HSE affirmed its refusal of the request under section 37(1). It said that as the consent was not included with the original request, it did not inform the original decision and was therefore not considered at internal review. On 25 November 2024, the applicant applied to this Office for a review of the HSE’s decision. He said he was his mother’s next of kin and that he had her written permission for him to access the records.
During the course of the review, the HSE also sought to rely on section 42(m)(i) of the FOI Act as a ground for refusing the request. This Office’s Investigator informed the applicant of the HSE’s reliance on section 42(m)(i) and also provided details of the HSE ‘s submissions in respect of the applicability of certain provisions of section 37. The applicant made further submissions in response.
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 both parties. 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 with whether the HSE was justified in refusing access to the records sought under sections 37(1) and/or 42(m)(i) of the FOI Act.
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 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 (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential, The section also specifies 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information, including (ii) information relating to the financial affairs of the individual.
The records at issue comprise the Safeguarding Assessment file in respect of the applicant’s mother. The HSE said that the information withheld under section 37(1) is personal to a number of people and that most importantly, the safeguarding case refers specifically to one vulnerable adult. It said it is in the context of protecting the rights of the vulnerable adult at the centre of this case that access to all of the records have been refused. It said the relevant records consist of referral forms and notes for assessing the safeguarding of vulnerable persons who are at risk of abuse.
It is important to note that the fact that a requester may be aware of the nature of the information at issue or may have even provided some or all of the information to the body in question does not mean that it cannot be regarded as personal information relating to a third party for the purposes of the FOI Act. As the applicant is aware, the safeguarding assessment carried out was in respect of concerns about his mother’s financial affairs. As such, the file clearly contains personal information relating to the applicant’s mother. The file also contains personal information relating to the applicant and a small amount of personal information relating to other third parties. I am, satisfied that such information is inextricably linked with the personal information of the applicant’s mother, i.e. it is joint personal information relating to the applicant and his mother or joint personal information relating to the applicant’s mother and other third parties. Accordingly, I find that section 37(1) applies to the entirety of the file.
In so finding, I have had regard to section 18(1) of the FOI Act which 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). I take 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 particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent. In my view, while it might be possible to release parts of some of the records, the partial copies would be misleading.
The fact that I have found section 37(1) to apply is not the end of the matter as section 37(1) is subject to the provisions of section 37. Accordingly, I will now proceed to consider whether any of those provisions apply in this case.
Section 37(2)
Section 37(2) provides as follows:
(2) Subsection (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.
but, in a case falling within paragraph (a) or (b), the head concerned shall ensure that, before the FOI request concerned is granted, the identity of the requester or, as the case may be, the consent of the individual is established to the satisfaction of the head.
The purpose of section 37(2)(a) is to ensure that section 37(1) cannot apply to information relating solely to the requester. As I have outlined above, I am satisfied that the information in the records that relates to the applicant is inextricably linked with personal information relating to his mother. 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 (c), (d) or (e) are relevant in this case, nor do I consider any to apply.
On the matter of the applicability of subsection (b), I have outlined above that the applicant provided the HSE with a consent form signed by his mother. He also provided this Office with a letter signed by his mother authorising him to access her medical records.
HSE’s Submissions
In its submissions to this Office, the HSE said it considered 37(2)(b) in particular as the applicant forwarded consent from the vulnerable adult on 4 July 2024 as part of his request for an internal review. It said the vulnerable adult at the centre of this case does not have capacity to make her own decisions and this position has been referred to by the applicant himself and is supported in the Safeguarding file. It said the decision-making capacity of the vulnerable adult has also been raised via the Court. It said the applicant has confirmed that his reasons for seeking access to the outcome of the Safeguarding Assessment was to support his application as the Assigned Support person under the Assisted Decision-Making (Capacity) Act 2015. It noted that the vulnerable adult is now under the Decision Support Service and the applicant is not the assigned support. It said all parties are in agreement that the vulnerable adult is not in a position to provide informed consent in relation to any matters that affect her (although I note that the applicant disputes this assertion). It said that in the context of the HSE’s commitment to safeguarding vulnerable persons, it is the position of the HSE that the vulnerable adult’s consent does not apply in these circumstances, and it could be to the detriment of a vulnerable person if certain information was disclosed to a third party.
Applicant’s Submissions
In his submissions dated 11 June 2025, the applicant said his mother was hospitalised in August 2023 following a fall and experienced short-term delirium. He said this led to a safeguarding referral to the HSE, based on what he believes were misunderstandings during that vulnerable period. He said the resulting safeguarding assessment, completed in July 2024, found no abuse, and explicitly acknowledged that he had acted in good faith, with legal authorisation, and in her best interests. He said that despite this, the HSE proceeded to court to seek a declaration of incapacity against his mother in October 2024. He said this was done without any formal assessment at the time and appeared to have relied solely on incomplete or misleading medical notes. He said his mother was not allowed to speak in court, even though she had twice expressed to state-appointed solicitors that she wanted to manage her own affairs in conjunction with his assistance. He said his mother has since undergone two independent assessments by a Consultant Geriatrician with both confirming that she retains mental capacity and supports his involvement. He said he is currently pursuing a review of the incapacity declaration through proper legal channels.
The applicant added that the consent letter he provided was signed in July 2024, prior to any legal declaration of incapacity, which he said was only made in October 2024. He argued that the consent was therefore valid and lawful at the time. He said his mother has stated repeatedly her wish for him to support and represent her. He said he is the only family member involved in her care and legal affairs and that the HSE’s own safeguarding team confirmed that he acted transparently and with care. He said he is currently pursuing appointment as her Decision-Making Representative under the Assisted Decision-Making (Capacity) Act 2015. He argued that to deny him access on technical grounds while he is acting in his mother’s interests and with prior valid consent is a misapplication of both the FOI Act and the principles of fairness.
The applicant provided this Office with a copy of a summary of the HSE Safeguarding Report (provided by the HSE at the request of the Circuit Court) and redacted copies of two assessments of the legal mental capacity of the vulnerable adult carried out by a consultant physician and geriatrician on 30 September 2024 and 11 April 2025. The first assessment found that the vulnerable adult may well have legal mental capacity and suggested that, if further assessments are required, perhaps the next step would be to engage a clinical psychologist to do a more detailed battery of cognition and capacity tests. The second found that, in the opinion of the consultant, the vulnerable adult had the capacity to make decisions regarding her personal affairs. The applicant also provided certain redacted parts of an affidavit sworn by state-appointed solicitors containing details of statements his mother made to the deponent of the affidavit.
The applicant said that these documents show conclusively that he acted in good faith and within the law, that no abuse was found, that his mother expressed her preference for him to manage her affairs and that she retains mental capacity as confirmed by two independent assessments.
I note at the outset that while subsection (b) of section 37(2) provides that section 37(1) does not apply if the individual to whom the information relates consents to its disclosure to the requester, this is subject to the requirement that the FOI body must ensure that, before the FOI request is granted, the consent of the individual is satisfactorily established. This Office takes the view that the fact that a person signs a form of consent is not conclusive and may be rebutted by evidence which indicates that the signature was obtained without the person signing the document appreciating what he or she was doing. In other words, we take the view that the consent given must be informed.
I also wish to explain that a review by this Office is considered to be “de novo” which means that it is based on the circumstances and the law as they pertain at the time of our decision. As such, the fact that the consent the applicant provided to the HSE predated a subsequent legal declaration of incapacity does not mean that I can have no regard to that subsequent declaration. I note in this case that in proceedings before the Circuit Court under Part 5 of the Assisted Decision-Making (Capacity) Act 2015, the Court issued on Order on 5 June 2024 wherein it stated that the Court is satisfied that the applicant’s mother “lacks capacity, even if a co-decision maker is made available to her”. As set out in the Order, the Court made a declaration pursuant to section 37(1)(b) of the 2015 Act that the applicant’s mother “lacks capacity, even if the assistance of a suitable person as a co-decision maker were made available to her to make decisions in relation to her personal welfare and her property and affairs”.
l fully accept that the applicant has provided contrary opinions from a Consultant Geriatrician that the applicant’s mother has the capacity to make decisions concerning her personal affairs and that those opinions were formed following an assessment that was conducted subsequent to the Circuit Court Order. However, it is not a matter for this Office to decide between differing opinions on an individual’s capacity. Rather, we must consider whether consent has been satisfactorily established. In this case, in circumstance where there is conflicting evidence before this Office as to the capacity of the individual in question to give informed consent, I do not believe it has been so established. The question of whether or not the applicant’s mother has the capacity to make decisions concerning her personal affairs is a matter for consideration by the Court and not by this Office. Accordingly, I find that the consent of the individual to whom the records relates has not been satisfactorily established and that section 37(2)(b) 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 that the release of the information at issue in this case would benefit the applicant’s mother and I am satisfied that it would not. I find, therefore, that section 37(5)(b) 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 under section 37(8) which I will 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.
In its submissions, the HSE said it considered the following factors in favour of release:
• The public interest in the public knowing how a public body performs its functions
• The public interest in members of the public knowing that information held by public bodies about them, or those they represent, is accurate
• The public interest in members of the public exercising their rights under the FOI Acts
• The public interest in the public knowing how a public body makes decisions
It considered the following factors against release:
• The public interest in protecting the right to privacy of members of the public
• The public interest in members of the pubic 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 public interest in safeguarding the flow of information to public bodies
• The public interest in the receipt by a public body of information that assists in protecting elderly persons
It said it considers that the public interest in the continued receipt of sensitive information and protecting information given in confidence as well as protecting the privacy of individuals outweighs the public interest that would be served were any of the records to be released to the applicant. It said it is also satisfied that release of this information may prejudice the giving of similar information in the future and this type of information is vitally important to the Safeguarding & Protection Team in order that it carries out its functions in relation to the investigation of allegations of abuse against vulnerable persons. It said the “Safeguarding Vulnerable Persons at Risk of Abuse - National Policy and Procedures” applies to all HSE and HSE funded services and the policy outlines a number of principles to promote the welfare of vulnerable people and safeguard them from abuse. It said these include a requirement that all services must have a publicly declared “No Tolerance” approach to any form of abuse and must promote a culture which supports this ethos.
In his submissions to this Office, the applicant said that, given the gravity of the matter, including the impact of the HSE’s actions on his mother’s rights and his own, this Office should grant access to the withheld records or, in the alternative, grant partial or redacted access, or permit access via a solicitor or healthcare intermediary. He said access to the records is critical to ensuring accountability and supporting the appeal of a decision that his mother contests. He said this is not simply an administrative request but is a necessary step toward correcting a serious procedural injustice.
It is important to note again that the release of records under section 37(5)(a) must be regarded, in effect, as release to the world at large. There is no provision in the FOI Act that allows for the granting of limited access to the personal information of a third party to an intermediary such as a solicitor or healthcare professional. I accept that there is a strong public interest in protecting the rights of vulnerable individuals. However, it seems to me that this is precisely what the safeguarding assessment procedures aim to do and there is a strong public interest in ensuring that the HSE’s ability to conduct such assessments is not impaired in any way. I also accept that the release of the records at issue would allow the applicant to make a more informed decision as to the accountability of the HSE and the appropriateness of is actions in respect of the manner in which it carried out the safeguarding assessment. On this point, it seems to me that this public interest has been served to some extent by virtue of the applicant having been made aware of the outcome of the safeguarding assessment. The question I must consider is whether the release of the records, potentially to the world at large, would further serve the public interest in release to the extent that it would outweigh the privacy rights of the applicant’s mother.
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).
Having considered the matter and bearing in mind the strong public interest in protecting the right to privacy and having regard to the sensitive and private nature of the records at issue, I am not satisfied that there is any sufficiently specific, cogent and fact-based reason for finding that the public interest in releasing the records that outweighs, on balance, the privacy rights of the applicant’s mother. Accordingly, I find that section 37(5) does not serve to disapply section 37(1) in respect of any of the information at issue.
Section 37(8)
Section 37(8)(a) provides that, notwithstanding subsection (1), the relevant Minister may provide by regulations for the grant of an FOI request where the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (the 2016 Regulations).
Among other things, the 2016 Regulations provide for a right of access by a guardian of an individual to personal information relating to the individual where;
(i) at the time of the request, the individual has, or is subject to, a psychiatric condition, mental incapacity or severe physical disability, the incidence and nature of which is certified by a registered medical practitioner, and
(ii) by reason of that condition, incapacity or disability, the individual is incapable of exercising his or her rights under the Act, and
(iii) the FOI body considers, having regard to all the circumstances, that release of the records would be in the individual's best interests.
All three requirements must be met for a right of access to exist under the 2016 Regulations. The applicant’s primary argument in support of his contention that he is entitled to access the records at issue is that his mother retains the capacity to exercise her rights under the FOI Act and has properly consented to the release of the records to him. As such, it seems to me that it is not also open to the applicant to argue that a right of access exists pursuant to the 2016 Regulations, which require that the individual is incapable of exercising those rights. In any event, it is not apparent to me that the applicant can properly be regarded as his mother’s guardian for the purposes of the 2016 Regulations. It is not a matter for this Office to determine if an applicant is the guardian of an individual who is incapable of exercising his or her rights under the Act. We would expect the applicant to be in a position to provide documentary evidence to demonstrate guardianship. No such evidence has been presented in this case. Moreover, I note the HSE’s argument that the Assisted Decision-Making (Capacity) Act 2015 does not give guardianship rights over a vulnerable adult and, under the Decision Support Service, the applicant is not the assigned support. It is also important to note that the 2016 Regulations do not provide for a right of access to the records of individuals incapable of exercising their rights under the Act to their next of kin. Accordingly, I find that the 2016 Regulations do not provide for a right of access to the records at issue in this case.
In conclusion, therefore, I find that the HSE was justified in refusing, under section 37(1) of the Act, the applicant’s request. Having found that section 37(1) of the Act applies to all of the records at issue it is not necessary for me to go on to consider the applicability of section 42(m)(i).
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 was justified in refusing access to the records in question 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