Decision
Ms A and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-148143-H0B0J4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-148143-H0B0J4
Published on
Whether the HSE was justified in refusing access to the applicant’s late father’s medical records
1 November 2024
In a request dated 22 November 2023, the applicant sought access to a copy of all medical records for her late father from a named hospital between the dates of 16 June 2023 to 25 June 2023. In a decision dated 26 February 2024, the HSE refused access to the records on the basis that the records were exempt from release under section 37(1) of the FOI Act. On 5 March 2024, the applicant sought an internal review of the HSE’s decision to refuse her request. The applicant stated that she was the executor of her father’s estate and that the records should be released to her. On 28 March 2024, the HSE issued its internal review decision on the matter, which affirmed the original decision on the basis of section 37(1). On 16 April 2024, 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 with whether the HSE was justified in refusing access to the applicant’s late father’s medical records relating to an admittance to a named hospital on the dates in question under the provisions of the FOI Act.
Although I am obliged to give reasons for my decision, section 25(3) 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 records at issue and the material that I can refer to in the analysis is limited.
The release of records under FOI is generally considered to equate to their release to the world at large, as the FOI Act places no restrictions on the use to which released records may be put.
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 requested records relate to the applicant’s father’s medical history. I am satisfied that the information at issue in this case relates to the personal information of an identifiable individual 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) 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, accordingly, that section 37(2) does not 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 in relation to section 37(5)(b) and I consider that it does not apply in the circumstances of this case.
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.
In this case, while the applicant did not identify any specific public interest factors in favour of the release of the records at issue that might outweigh, on balance, the privacy rights of her late father, she indicated in her correspondence that she wanted access to the records specifically around the day he passed away in the hospital. It seems that the applicant has concerns over the manner in which her father was cared for in the hospital. While the applicant has essentially expressed a private interest for seeking access to the records, it seems to me that her reasons for seeking 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 in patients in hospital settings, on the other hand, the records at issue are of an inherently sensitive and private nature and I must regard their release as being effectively, or at least potentially, 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)(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 (S.I. 218 of 2016). The 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.
Neither of the decision letters issued by the HSE referenced the section 37(8) Regulations or gave any indication that they were considered in the decision making process. During the course of the review, this Office invited the HSE to make a submission in support of its refusal of the request and it drew the HSE’s attention to relevant provisions where the individual to whom the record concerned relates is deceased.
The HSE argued that the decision maker and internal reviewer took section 37(8) and the guidance note issued by the Minister into account, however it acknowledged that this consideration was not adequately addressed in the decision letters. It states that this was an oversight and that while it accepted that it had omitted references to section 37(8) and the Guidance notes in its decisions, that it would ensure that such references were included in future correspondence.
The HSE’s submissions suggests that it considered the applicant’s request under category (iii) of the Regulations above, as next of kin. I am not convinced by the HSE’s assertion that it considered the Regulations when processing the request, given the absence of any mention of the Regulations in its decision letters. Even if it did, I am not satisfied that it had due regard to the accompanying guidance issued by the Minister pursuant to the provisions of section 48(1) of the Act. That section provides that the Minister may draw up and publish guidelines for the effective and efficient operation of the FOI Act to assist FOI bodies in the performance of their functions under the Act and that FOI bodies shall have regard to such guidelines.
The relevant guidance is available on the website of the Central Policy Unit of the Department of Public Expenditure and Reform and according to the HSE, it is aware of its existence. In considering whether the applicant has a right of access to the records sought under category (iii), the question the HSE must consider is whether, 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.
The relevant guidance suggests that each case must be judged on its own merits and that the decision maker will have to balance the public interest in the confidentiality of personal information against the public interest in the right of the requester to access the records. It suggests that in light of the requirement on the decision maker to have regard to "all the circumstances", the factors to be considered include:
• the confidentiality of personal information
• whether the deceased would have consented to the release of the records to the requester when living
• would the release 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 prior to the death of the deceased
• the nature of the records to be released
• can the requester obtain the information sought without accessing the records of the deceased?
It is not clear to me that the HSE had regard to these factors in the original decisions. I am not satisfied that the HSE properly considered S.I. 218 of 2016 when processing the applicant's request or that it has justified its decision to refuse the request. While I accept that it addressed some matters in its submissions to this Office, it would not be appropriate for this Office to make a first instance determination on whether the applicant is entitled to access the records sought under the 2016 Regulations. In light of the nature and contents of many of the records at issue, I do not consider it appropriate to simply direct the release of the records. Instead, I consider that the appropriate course of action is to annul the HSE’s decision and direct it to undertake a fresh decision-making process, during which it must have due regard to section 37(8) and the provisions of the 2016 Regulations.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE’s decision. I direct it to undertake a fresh decision making process in respect of the applicant’s request, having due regard to the provisions of the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016.
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.
Rachael Lord
Investigator