Decision
Mr. H & Health Service Executive (the HSE)
From Office of the Information Commissioner (OIC)
Case number: OIC-153844-J4W0J7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-153844-J4W0J7
Published on
Whether the HSE was justified of the FOI Act in refusing access, under Section 37(1) of the FOI Act, to the medical records of a deceased individual
18 August 2025
On 04 October 2024, the applicant submitted a request to the HSE for access to the GP medical records of his deceased birth mother. He included a copy of his birth certificate and passport as proof of identity.
In its decision of 21 October 2024, the HSE refused the request. In doing so, it cited section 37(8) of the FOI Act and the related Regulations which provide for a right of access to the records of deceased persons by certain categories of requester. It said that with the documentation submitted, he did not fall within such a category. It also cited section 37(6) which requires an FOI body to refuse to confirm or deny the existence of records if doing so would involve the disclosure of third-party personal information.
On 04 November 2025, the applicant requested an internal review of the HSE’s decision. In its internal review decision on 12 November 2024, the HSE affirmed its refusal of the request. On 20 November 2024, the applicant sought a review by this Office of the HSE’s decision. During the course of the review, the HSE confirmed that it no longer wished to rely on section 37(6) of the Act and was instead relying on section 37(1). This Office’s Investigator provided the applicant with a summary of the HSE’s submissions and invited him to make further submissions. No further submissions have 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 between the applicant and the HSE as outlined above, and to the correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with the question of whether the HSE was justified in refusing the applicant's request for access to the medical records of his deceased birth mother under section 37(1) of the FOI Act.
Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information (including personal information of a deceased individual). Section 2 of the 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. The definition also contains a list of 14 specific types of personal information including information relating to the medical and psychiatric history of the individual.
The records at issue consist of medical records, specifically patient information and consultation notes. I am satisfied that the records contain the personal information of the deceased person. There are also references to other identifiable relatives and third parties in the records. I am satisfied that this information is personal information relating to those individuals. I find that section 37(1) applies to the records sought.
Section 37(2)
There are some circumstances, provided for at section 37(2), in which the exemptions at section 37(1) do not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say (a) the information contained in the records does not relate to the applicant; (b) the third parties have not consented to the release of their information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
Section 37(5) the Public Interest
Section 37(5) provides that a request that would fall to be refused under subsection (1) may still be granted where, on balance, (a) 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 person to whom the information relates. In the particular circumstances of this case, I find that section 37(5)(b) does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of 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.
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.
Moreover, it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.
In its internal review decision, the HSE said that the language of Section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy. It said the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. It said that having considered the content of the withheld records, it did not consider that their release would serve the public interest to such an extent that a breach of the other people’s right to privacy is justified. In its submission to this Office, it said it considered the following public interest factors in favour of release and the public interest factors against release.
Public Interest Factors in favour of release
• Requester exercising their rights under the Freedom of Information Act 2014.
Public Interest Factors against release
• In protecting the right of privacy of service user(s) attending their GP.
• In patient(s) being able to attend their GP and communicate with their GP in confidence without fear of disclosure in relation to their personal sensitive special category health data including after death.
It said it considered the applicant’s interest to be a private one and referred to section 37, noting the long title to the FOI Act recognises a very strong public interest in protecting the right to privacy. It said that the release of a patient’s special category health data from their attendance with their GP would not serve the public interest to such an extent that a breach of other people’s right to privacy is justified. It said it also found no overriding public interest in the release of GP records, effectively to the world at large, that outweighs the privacy rights of the patient including in death.
In his application for internal review, the applicant said he was the deceased’s closest blood relation as the deceased was an only child. He said that he sought the medical records regarding family history to ascertain if any medical conditions run in the family. He also provided a copy of letter from an information and tracing service for adopted people as proof of being her birth son. In his application to this Office, the applicant said his birth mother’s medical records would be useful to him in the future.
I accept that there is a public interest in individuals being made aware of details of medical conditions that might affect their health. On the other hand, the records at issue in this case are of an inherently private nature and release pursuant to section 37(5(a) must be regarded as release to the world at large. Accordingly, I am not satisfied that there is any sufficiently specific, cogent and fact-based reason for finding that the public interest in granting the request outweighs the privacy rights of the individual to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.
Section 37(8) - Access to the personal information of deceased persons
Section 37(8) of the Act provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform ("the Minister") may provide by Regulations for the grant of an FOI request in certain circumstances where the individual to whom the information relates is dead. The current Regulations SI 218 of 2016 came into effect on 27 April 2016.
Regulation 4 provides that, notwithstanding section 37(1), an FOI request may be made for records which involves the disclosure of personal information (including personal information relating to a deceased individual), and shall, subject to the other provisions of the Freedom of Information Act 2014, be granted if the case falls within a case to which Regulation 7 applies. Regulation 7 applies to a case in which the individual to whom the record concerned relates is dead (“the individual”) and either-
(a) the requester concerned belongs to one or other of the following classes:
(i) a personal representative of the 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 individual or his or her estate acting in the course of the performance of the function, or
(b) 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.
In essence, the applicant has argued that he is the next of kin of the deceased. Next of kin is defined in SI 218 of 2016 as
(a) issue,
(b) parent,
(c) brother or sister,
(d) a niece or nephew, or
(e) any other person standing nearest in blood relationship to the individual in accordance with section 71(2) of the Succession Act 1965.
It is also important to note that the 2016 Regulations do not provide for the release to the next of kin of the personal information of any party other than the relevant deceased person. Neither do they provide for the release to such a requester of the personal information of the deceased person where that is joined to the personal information of any other party. Therefore, I have considered section 37(8) and the 2016 Regulations only in relation to the information that relates solely to the deceased.
In its submissions to this Office, the HSE said that both the original decision maker and internal review decision maker considered Section 37(8)(b), including the Section 37(8) Regulations 2016 as amended and guidance issued by the FOI Central Policy Unit of the Department of Public Expenditure and Reform regarding access to records relating to deceased persons. It said the decision makers were not satisfied the evidence provided by the applicant was sufficient to meet the requirements of section 37(8)(b) or section 71(2) of the Succession Act 1965. It provided this Office with copies of the documentation the applicant submitted with his requests. It said the birth certificate provided did not include the applicant’s name. It said is has no evidence supporting the correspondence of an information and tracing service that has since closed. It said the applicant has not been able to provide any State issued documentation supporting the claim that the deceased was in fact his maternal mother. It said that the decision to refuse the request was issued on the grounds that the applicant did not fall to be a category of requestor per the section 37(8) Regulations 2016 as amended.
Section 58 of the Adoption Act 2010 provides as follows:
"Upon an adoption order being made...
(a) the child concerned shall be considered, with regard to the rights and duties of parents and children in relation to each other, as the child of the adopters born to them in lawful wedlock, and
(b) with respect to the child, the mother or guardian of the child shall...lose all parental rights and be freed from all parental duties."
According to Shannon in Child Law (2nd ed, Round Hall 2011) at 448:
"The making of the adoption order effectively and comprehensively severs the legal nexus between the natural parent and the child, so that the former will retain no rights or duties in respect of the child. ... In effect, therefore, following the adoption of a child by the natural mother, the natural father is no longer a "parent", and therefore any maintenance order previously made ceases to have effect. Nor will the estate of a natural parent (not being an adopter of the child) be deemed liable under the Succession Act 1965 the (Status of Children Act 1987 notwithstanding) for any legacy payable on intestacy."
While the applicant has not indicated that an adoption order was made in his case, the evidence he provided supports the fact that he was adopted and that he is seeking records relating to his birth mother. As such, I accept the HSE’s position that it has not received sufficient evidence to support the applicant’s assertion that he is the deceased's ‘next of kin’ for the purposes of the Regulations. I find that, in the absence of evidence demonstrating the applicant is the legal ‘next of kin’ of the deceased, section 37(8) of the Act does not apply in this case.
In conclusion, therefore, I find that the HSE was justified in refusing access to the records sought under section 37(1) of the FOI Act.
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 its decision to refuse access, under section 37(1) of the FOI Act, to the records at issue.
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