Decision
Ms. Z and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-152153-T9D1Z2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-152153-T9D1Z2
Published on
Whether the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to the applicant and her twin brother on the basis that no further records exist or can be found, and to certain information it redacted, under section 37(1) of the Act, from the records it released to the applicant
20 December 2024
In a request dated 14 December 2023, the applicant sought access to all records held about herself and her twin brother by a particular hospital dating from her birth in the early 1960s. The applicant said that she has been informed that a “Biological Report” was produced on the birth of each living baby before a birth certificate was issued. She said she believed six of these reports were produced for the date of her birth but was informed no such Biological Report exists for either herself or her twin brother. The applicant asked that this be investigated. She said she is trying to trace her brother.
The HSE contacted the applicant to clarify her request and subsequently informed her
that the earliest obstetric charts that the hospital has starts in 1983/84. The HSE said that if the applicant’s information is correct regarding “biological reports,” then such records might form part of the mother’s obstetric chart. The HSE said it has no obstetric charts prior to 1983/84 and did not understand who would have advised the applicant that six such reports were produced for the date she was born. The HSE said these reports might be what are now known as Birth Notification Forms which are sent from the hospital to the Health Centre. The HSE suggested the applicant could contact the Birth Marriages & Deaths Office to enquire if that office holds any such records in respect of her and her brother’s birth. The HSE notified the applicant that it would search the Labour Register from the Archive Store for records related to her request.
On 21 February 2024, the HSE released records to the applicant relating to her A&E attendance at the hospital in 2008. On 8 March, the applicant requested an internal review of that decision, requesting all information about herself and her twin brother. She said she is also looking for information under the Birth Information and Tracing Act 2022.
On 25 March 2024, the HSE varied its original decision and released a copy of the entry into the Registration of Births relating to the applicant. It also released a copy of an entry into the Intern Case Book. The HSE said that it had to withhold some information from these registers, under section 37(1) of the FOI Act, as it pertains to other individuals, including personal information of the applicant’s mother. The HSE said the entry in the Intern Case Book only records a single birth (that of the applicant) and that it is satisfied that no records exist in relation to a twin. It also said that obstetric records regarding the applicant’s birth in 1962 no longer exit. The HSE again explained the birth registration process and said that no biological report is issued by the hospital. It also provided the applicant with information about the Birth Information and Tracing Act 2022. The HSE refused access to further records relating to the birth of the applicant and her twin brother under section 15(1)(a) of the Act.
On 7 September 2024, the applicant applied to this Office for a review of the HSE’s decision. The applicant explained that she is trying to trace her twin brother who she claims was the subject of an illegal adoption at birth.
During the course of this review the Investigating Officer provided the applicant with details of the HSE’s submission wherein it outlined its reasons that no further records exist. The applicant was invited to make further submissions. No response has been received to date.
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, including the applicant’s comments in her application for review and to the submissions made by the HSE in support of its decision. I have also had regard to the copy of the Intern Case Book and the Registration of Birth records provided by the HSE to this Office for the purpose of this review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the HSE was justified in refusing access to further records concerning the applicant and her twin brother under section 15(1)(a) of the FOI Act on the basis that no further records exist or can be found, and whether it was justified in redacting, under section 37(1) of the FOI Act, personal information of third parties contained in the Intern Case Book and Registration of Birth records that it released to the applicant.
I wish to address some preliminary matters before dealing with the substantive issues. Firstly, in her application to this Office, the applicant said she is also seeking access to the information at issue under GDPR and the Birth Information and Tracing Act 2022. The Investigating Officer notified the applicant that this review is solely concerned with the HSE’s decision on her FOI request. This Office has no role in examining any requests made by the applicant under GDPR and/or the Birth Information and Tracing Act 2022. I understand that the applicant has made a tracing application to Tusla.
Secondly, while the applicant believes there should be an investigation into why certain records were not created at the time of her birth, it is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism regarding the actions of FOI bodies.
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken.
A review of an FOI body's refusal of records under section 15(1)(a) assesses whether it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request or that the requested records do not exist. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous and other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. It is not normally the function of this Office to search for records.
In its submissions to this Office, the HSE said it conducted searches of its Integrated Patient Management System (iPMS) and Radiology System (NIMIS) to establish contacts with the applicant. These system searches returned one attendance to A&E in 2008. Using the applicant’s name and date of birth these records were subsequently located within Microfiched A&E cards and provided to the applicant. As the applicant sought records regarding her birth, the birth registers, both the Intern Case Book and the Registration of Birth Memorandum Book, were located where they are archived off site and, using the applicant’s date of birth, the entries relating to her birth were located by a physical search as these registers are held in hard copy.
The HSE reiterated its position that it had previously notified the applicant that it is satisfied she was a single birth and not a twin. Therefore, the HSE’s position is that such records never existed. The HSE said this position is supported by the Intern Case Book and Registration of Birth Memorandum Book records, of which redacted copies have been provided to the applicant. The HSE said searches for records which it says never existed were not necessary. Having regard to the HSE’s submissions and having examined the records, I am satisfied that the HSE has adequately reasoned that searches for records relating to a twin were not necessary as the records indicate the applicant was a single birth and she had been told this by the HSE prior to making the FOI request. Notwithstanding the applicant’s account of events from her childhood contained in her application to this Office, the applicant has not provided any documentary evidence to contradict the HSE’s position that her birth is recorded as a single birth in the hospital records.
The HSE reiterated its position that the hospital does not have obstetric charts prior to 1983/84 and provided copies of relevant record retention policies. The HSE also noted the applicant said in her application to this Office that she did not need to see her mother’s file and, therefore, consider any such records, if they existed, would be outside the scope of the applicant’s request. The HSE also said it has explained this to the applicant on previous occasions. As the records date from more than two decades prior to 1983 and the applicant stated herself that she does not need to see these records in her application to this Office, I am satisfied the HSE was justified in refusing access to these records on the basis that they no longer hold these records and, if they did, they would be outside the scope of this review given the applicant’s comments that she is not seeking her mother’s records.
With regards to a “biological report”, the HSE noted that the applicant states no such report exists for herself or her twin. The HSE said the reference to the biological report in her request was in the context of her wanting an investigation into why there was none and to have this amended and corrected if possible. In the circumstances, the HSE did not consider this as a request for records and said it dealt with this matter outside of the FOI process. Furthermore, the HSE said there is no such record as a “biological report” used by the hospital. It said it had discussed the birth notification form with the applicant in an effort to confirm if this was the record she sought access to. In addition, the HSE said birth notification forms would be held as part of the obstetric chart which according to the HSE no longer exist.
This Office takes the view that the FOI Act provides for a right of access to records held by an FOI body. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the FOI body concerned takes all reasonable steps to locate relevant records. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should or might exist. Having regard to the HSE’s submissions, and in the absence of any evidence to the contrary, I am satisfied that the HSE has taken all reasonable steps to locate records covered by the applicant’s request. Accordingly, I am satisfied that the HSE was justified in refusing access to further records coming within the scope of the applicant’s request under section 15(1)(a) of the FOI Act on the basis that no further records exist or can be found.
As noted above, the HSE redacted certain information, under section 37(1) of the FOI Act, that is contained in the Intern Case Book record and Registration of Birth record that it released to the applicant on the ground that it is personal information of third parties. While the applicant did not dispute these redactions, I have nevertheless examined the records in question and considered whether the HSE was justified in refusing access to the information contained therein.
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 the term “personal information” as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. Section 2 also details 14 specific categories of information which is personal without prejudice to the generality of the foregoing definition, including, but not limited to (i) information relating to the educational, medical, psychiatric or psychological history of the individual.
The HSE said the redactions made were personal information regarding individuals other than the applicant. In relation to the applicant’s personal entry, the HSE said she has received all of her own information and the details recorded about her mother and father as they appear on her birth certificate. The HSE said some personal details of her mother were redacted as this is personal to her mother and the applicant has not provided her mother’s consent allowing access to these details.
While I am limited in what I can say about information that is exempt under section 37(1), I can confirm that I have had examined the records and am satisfied that the redacted information does not relate to the applicant or contain any reference to a twin. I am also satisfied that the information at issue is personal information of individuals other than the applicant that is exempt under section 37(1) of the Act.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of the circumstances arise in this case. 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 information would be to the benefit of the person to whom the information relates. I am satisfied that the release of the information at issue would not be to the benefit of the individual concerned and that section 37(5)(b) does not apply.
In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right to privacy of the individual to whom the information relates.
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, 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.
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.
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, therefore, will be set aside only where the public interest served by granting release (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).
I have carefully considered the limited information that was refused by the HSE under section 37(1) of the Act. It seems to me that the HSE has endeavoured to strike a balance here by releasing as much information as possible to the applicant while respecting the privacy rights of her mother. It also seems to me that release of the remaining information at issue would do little to enhance transparency around the applicant’s birth records and, as noted above, contains no information about a twin.
On the other hand, the information which has been refused is of an inherently private nature and I must regard its release as being effectively, or at least potentially, to the world at large. Having considered the matter, and bearing in mind the strong public interest in protecting the right to privacy, I do not accept there is any public interest in releasing the information at issue that outweighs the privacy rights of the relevant third party. In particular, I am not satisfied that a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure has been advanced, nor is any such reason evident to me from the records. I find, therefore, that section 37(5)(a) does not apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision to refuse access to the further records sought by the applicant under section 15(1)(a) of the Act. I also affirm the HSE’s decision to refuse, under section 37(1) of the Act, the personal information of other parties, that it redacted from the records it released to the applicant.
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