Decision
Ms I and Beaumont Hospital (the Hospital)
From Office of the Information Commissioner (OIC)
Case number: 140041
Published on
From Office of the Information Commissioner (OIC)
Case number: 140041
Published on
Whether the Hospital was justified in its decision to refuse access to parts of the medical records of the applicant's deceased brother on the basis that it contains personal information of a third party and is exempt under section 28(1) of the FOI Act
3 October 2014
The applicant made an FOI request on 10 July 2012 to the Hospital for access to "a copy of all of the medical records of the late Gerard Davoren" held by the Hospital. On 27 February 2013 access to the requested records was granted in part only. Information contained in a small number of records was refused on the grounds of section 28 of the FOI Act on the basis that it contained personal information of third parties. The applicant requested an internal review of this decision through her legal representatives on 28 May 2013. In its Internal Review decision of 16 August 2013 the Hospital upheld its original decision. The applicant was not satisfied with this and applied to this Office for a review of the decision of the Hospital on 12 February 2014.
In its original decision the Hospital granted access to the requested records while withholding seven individual pieces of information on the basis of section 28(1) of the FOI Act. During the course of this review the Hospital released a copy of five of the seven records originally withheld. The remaining two pieces of redacted information were not released on the ground that they contained personal information of a third party.
I note that Mr David Logan of this Office informed the applicant of his preliminary view that the decision of the Hospital to refuse access to these remaining redacted information contained in the records was justified. Apart from the issue of consent from the third party, which I will deal with below, the applicant did not offer any further submission to this Office on foot of this preliminary view and I consider that the review should now be brought to a close by the issue of a formal binding decision.
In conducting this review I have had regard to:
I have also had regard to the provisions of the FOI Act, and, in considering the public interest test at section 28(5)(a), the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner(which I will refer to below as "the Rotunda judgment").
While the FOI Act requires me to provide reasons for my decisions, section 43(3) of the FOI Act requires that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. Thus, I can only give a limited description of the records at issue in this case.
This review is confined to whether or not the Hospital was justified in refusing to release the redacted portions of the remaining two records on the basis of section 28(1) of the FOI Act.
The information redacted from the two records at issue in this case relates jointly to the applicant's deceased brother and a third party. I find that the information in question comprises personal information for the purposes of the FOI Act. Section 28 of the FOI Act provides that a public body shall refuse to grant access to information where access would involve the disclosure of personal information relating to a third party unless it considers that the public interest in granting access would, on balance, outweigh the right to privacy of the individual to whom the information relates. I find that these records contain the personal information of a third party and that, accordingly, section 28(1) of the FOI Act applies to that information. The effect of section 28(1) is that a record disclosing personal information of a third party cannot be released to another person unless one of the other relevant provisions of section 28 applies - in this case sections 28(2) and 28(5).
Section 28(2) provides that section 28(1) does not apply in certain circumstances. Having examined the records in question, I am satisfied that subsections (a) to (e) of section 28(2) are not relevant because the information contained in the records does not relate to the applicant; there is no evidence that any of the individuals referred to consented to the release of the records to the applicant; the information is not of a kind that is available to the general public; neither does it belong to a class of information that might be made publicly available. It has not been argued either that disclosure of the information is necessary to avoid a serious and imminent danger to the life or health of an individual.
I note that the applicant by way of submission to this Office has requested that she be provided with the identity of the third party referred to in the records to allow her ascertain if the third party identified in the record consents to the release of the record. I am satisfied that it is not appropriate to do so as this would involve the disclosure of exempt information. Section 43(3) requires that the Commissioner shall take all reasonable precautions during a review to prevent the disclosure of exempt information. Section 28(2)(b) provides that section 28(1) does not apply if the individual to whom the personal information relates consents to its release. For example, if a requester knowingly sought access to information relating to a third party and provided the written consent of that third party to the release of such information, then section 28(1) would not apply. No such circumstances arise in this case. In the circumstances of this case, I do not consider that the seeking of consent of the relevant third party would be appropriate in this instance.
Section 28(5) provides that a record containing the personal information of a third party may be released in certain limited circumstances. The exemption could be set aside if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual.
I do not see how the release of the records at issue to the applicant would benefit the third party mentioned in the records. Accordingly, I find that section 28(5)(b) of the FOI Act does not apply.
In relation to section 28(5)(a), in the Rotunda judgment referred to earlier, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") must be distinguished from a private interest for the purpose of section 28(5)(a). The language of section 28 and of the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Accordingly, when considering section 28(5)(a), privacy rights will 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.
What now remains to be determined in this case is the question of the public interest in releasing the information withheld by the Hospital, which would otherwise not be releasable under section 28(1), in accordance with section 28(5)(a) of the FOI Act. I note from the submission made by the applicant's solicitors on 11 March 2014 that the applicant considers she cannot make a fully informed decision on whether or not to commence a civil action against the Hospital in the absence of access to the entirety of the records held. While it seems to me this is, in essence, a private interest, it is clear that there are concerns about the level of care that the applicant's deceased brother received while in the Hospital. I accept that there is a public interest in optimising transparency and accountability in respect of such matters. However, I note that the vast majority of the records of the deceased have already been released and that the public interest in transparency and accountability have been met to a large extent. Having regard to the nature of the information withheld, it is not clear to me that its release would serve to further that public interest to any extent, and certainly not to such an extent that it should outweigh, on balance, the public interest that the right to privacy of the individual to whom the information relates should be upheld.
The applicant's solicitors also argue that applicant would be entitled to a Court Order directing discovery of the records in full. While this may be the case, the fact remains that release of a record under FOI is, in effect, release to the world at large as the FOI Act places no restriction on the potential further uses to which the record may be put. This contrasts with Court Orders of Discovery which restrict the further use to which a discovered record may be put following a particular Court hearing. Accordingly, I am satisfied that the fact that the records at issue might be disclosed on discovery is not relevant to the question of where the balance of the public interest lies. Having carefully, considered the matter, I find that the public interest that the request should be granted does not outweigh the public interest that the right to privacy of the individual to whom the information relates should be upheld in this case. Accordingly, I find that the Hospital was justified in refusing access to the information at issue in accordance with sections 28(1) of the FOI Act.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Hospital in this case.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator