Decision
Ms. X and University Hospital Limerick
From Office of the Information Commissioner (OIC)
Case number: OIC-150582-N3G9Y1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150582-N3G9Y1
Published on
Whether the Hospital was justified in refusing access to medical records relating to the applicant’s late husband under section 37(1) of the FOI Act
4 February 2025
In a request received by the Hospital on 23 January 2024, the applicant sought access to her late husband’s medical records. In an acknowledgement letter sent on 25 January 2024, the Hospital’s decision maker informed the applicant that section 37 of the FOI Act exempts records containing personal information, including personal information of a deceased person, from disclosure, subject to certain specific exceptions. She stated that section 37(8) provides that the Minister may make regulations for access by specific categories of requester including the spouse or former spouse. The decision maker stated that release to the spouse or former spouse is subject to a public interest test and the applicant must submit acceptable proof identifying the deceased and exhibiting evidence of the death. Following receipt of this letter, the applicant provided the Hospital with a copy of her marriage certificate and a death notice in respect of her late husband.
On 16 April 2024, the Hospital issued its original decision. The decision maker stated that the records requested are inherently private and of a very sensitive nature and she refused access to the records under section 37 of the FOI Act. On 24 April 2024, the applicant requested an internal review of the Hospital’s decision. On 25 June 2024, the Hospital issued its internal review decision on the matter, in which it affirmed the original decision on the basis of section 37(1) of the Act. On 16 July 2024, the applicant applied to this Office for a review of the Hospital’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 applicant’s comments in her application for review and to the submissions made by the FOI body in support of its decision. 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 solely with whether the Hospital was justified in refusing access to the medical records relating to the applicant’s late husband under section 37(1) of the FOI Act.
Before I consider the substantive issues arising in this case, I would like to make the following preliminary comment. 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.
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 medical history of the applicant’s late husband. The records include emergency department notes, medical assessments, surgical notes, prescriptions and discharge summaries. I accept that the records are inherently private and of a very sensitive nature. I am satisfied that the records contain 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) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third party has not consented to the release of the 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.
In the circumstances of the case, I am satisfied that none of the provisions of section 37(2) serve to dis-apply section 37(1) 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 request would benefit the person to whom the information relates. No evidence has been put forward, and it is not evident to me from the content of the records, that section 37(5)(b) applies.
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 insofar 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 could 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 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 individual 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.
The applicant states that she separated from her late husband in 2018 and her husband passed away in 2023. The applicant states that she has not received her late husband’s death details and she cannot get his death cert. She states that she needs the death cert for an assurance policy she had taken out years earlier and she needs it to access benefits under her late husband’s pension. The applicant also states that she needs to know what medication her husband had taken and if he was on any other form of drugs while he was in hospital 4 times the year he passed away.
I understand from the HSE’s website that to order a death certificate you need to provide
• full name of the person who died
• date of death
• name of street, hospital, home, town where the person died
• former address of deceased
• the person's age at the time of their death
[external-link https://www2.hse.ie/services/births-deaths-and-marriages/order/death-certificate/ | https://www2.hse.ie/services/births-deaths-and-marriages/order/death-certificate/ ]
It is not clear to me that the applicant needs her late husband’s medical records in order to obtain a death certificate. It also seems to me that the applicant has essentially expressed a private interest for seeking the records in order to access a pension. However, the applicant has also expressed a concern over the medication her husband had taken and by extension the manner in which her late husband was cared for in Hospital. I accept that this reason for seeking access to the records is reflective of a wider 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).
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 the applicant’s late husband by the Hospital. However, it remains the case that the records concerned are of a sensitive and inherently private nature. 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 deceased. I find, therefore, that section 37(5)(a) does not apply.
Section 37(8) of the FOI 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 where the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the Regulations. The relevant Regulations are the FOI Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016). Among other things, the Regulations provide that, notwithstanding section 37(1), a request for records which involves the disclosure of personal information of a deceased individual shall be granted where 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.
Under section 48(1) of the FOI Act, the Minister may draw up and publish guidelines for the effective and efficient operation of the Act to assist bodies in the performance of their functions under the Act. Section 48(3) of the FOI Act provides that FOI bodies "shall have regard to" such guidelines when performing their functions under the FOI Act. The Minister has produced Guidance relating to section 37(8) and the Regulations. The Minister’s Guidance note states that the 2016 Regulations require that regard must be had to “all the circumstances” when a decision-maker is considering whether the public interest would, on balance, be better served by granting the request of a spouse or next of kin. It provides that in reaching a decision on an individual case, the decision-maker should therefore take the following factors into consideration:
• The confidentiality of personal information, as set out in section 37(1) of the FOI Act;
• Whether the deceased would have consented to the release of the records to the requester when living;
• Whether the person had outlined arrangements in his or her will or other instrument in writing consenting to the release of personal records;
• Whether release would 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 before the deceased’s death;
• The nature of the records to be released;
• Whether the requester can get the information they want without accessing the records of the deceased;
• Any other relevant circumstances that the requester may set out.
In respect of the nature of the records to be released, the Guidance notes that if the records are inherently private, and of a very sensitive nature, then they are not likely to be released unless there are compelling reasons for so doing. It says that such reasons might include the release to a blood relative of records that show a hereditary medical condition. In relation to medical records specifically, the Guidance says that due regard should be had to the confidentiality of medical records in accordance with the Irish Medical Council Guide to Ethical Conduct and Behaviour. The Medical Council Guide states that patient information remains confidential even after death and suggests that, if unclear whether the patient consented to disclosure of information after their death, it should be considered how disclosure of the information might benefit or cause distress to the deceased’s family or carers, along with the effect of disclosure on the reputation of the deceased and the purpose of the disclosure.
The applicant states that she married her husband in the 1970’s. She states that she left her husband in 2018. The applicant made certain claims in relation to her late husband’s behaviour. The applicant states that she is unhappy with the decision that her husband would not have consented to release of his medical records. She states that he consented to let us know of all of his medications while alive and she states that he maybe he was on illegal drugs to explain his actions and behaviours while alive.
The Hospital states that it is clear from the correspondence sent to it by the applicant that she is the former wife of the deceased and they had been separated for a number of years. It states that it is also clear from her correspondence that the applicant did not have a relationship with the deceased for 6 to 7 years at least. The Hospital states that that having regard to the confidentiality of personal information at issue and the nature of the relationship of the requester to the deceased, it concluded that the public interest would, on balance, be better served by refusing the request.
I have carefully considered the content of the records. The records disclose very sensitive medical information provided in confidence by the applicant’s late husband to the Hospital. As outlined above, regard must be had to “all the circumstances” when a decision-maker is considering whether the public interest would, on balance, be better served by granting the request of a spouse or next of kin. It is clear from the applicant’s FOI request and subsequent communications with the Hospital and with this Office, that the applicant no longer had a relationship with her husband. The applicant says she intended to divorce her husband and she has made certain claims in relation to her husband’s conduct. There is no information before me to suggest that the applicant’s late husband outlined arrangements consenting to the release of his personal records, nor is it apparent to me that the applicant’s husband would have consented to the release of the records at issue to the applicant if he were still alive. Accordingly, I am satisfied that the Hospital was justified in arriving at its decision that the public interest, including the public interest in the confidentiality of personal information, would not be better served by the release of the records to the applicant in this case.
I find that the applicant is not entitled to access the records at issue further to the 2016 Regulations made under section 37(8) of the FOI Act. Accordingly, I find that the Hospital was justified in refusing access, under section 37(1) of the Act, to the records sought.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Hospital’s decision. I find that the Hospital was justified in refusing the applicant’s request for access to the medical records of her late husband 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.
Jim Stokes
Investigator