Decision
Mr A and Tallaght University Hospital
From Office of the Information Commissioner (OIC)
Case number: OIC-147990-F7X3T6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-147990-F7X3T6
Published on
Whether the Hospital was justified in refusing the applicant access to the medical records of his late father on the basis of section 37(1) of the FOI Act
29 October 2024
In a request received by the Hospital on 20 November 2023, the applicant sought access to the records of his late father. He used the Hospital’s template request form. He specified that he was seeking all records relating to his father, including all clinical and non-clinical records. The template request form asks requesters to provide background to the request and specify why they wish to obtain the records. In response, the applicant referenced the Freedom of Information Act, 1997 (Section 28(6)) Regulations, 1999 (the 1999 Regulations). He said that as the next of kin, he has an automatic right to obtain the records once requested. He said that his reason for requesting the records is to “inspect it like a fine comb and see everything in it, my Father, my business, plain and simple”.
I understand that the Hospital responded to the applicant seeking proof of identity and a copy of the deceased’s death certificate. It appears that there was a delay in obtaining the relevant death certificate and the Hospital agreed to process the request without it. In his submissions to this Office, the applicant said that he spoke to a staff member from the Hospital on 25 January 2024 and that they agreed to send him the requested records.
In a letter dated 1 February 2024, the Hospital referenced the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 S.I. No. 218/2016 (the 2016 Regulations). It said that in accordance with article 7(b), the decision-maker is obliged to have regard to all the circumstances in the processing of the request in order to come to a decision. The Hospital asked the applicant to outline why he wished to obtain the records in question. It said that if he was not in a position to do so, it would make a decision based on the contents of the records in question. In an email dated 8 February 2024, the applicant responded and said that he had specified his reason for requesting the records in the relevant form. He said that if the Hospital wanted him to be more specific, it was his father’s dying wish that his children had all his medical records and that when he was ill he reiterated many times that if anything ever happened to him to “make sure to get all his records”. He said that he could not be more specific than that. He said that was his final reason and that no other reason would be given.
On 11 March 2024, the applicant wrote to the Hospital seeking an internal review on the grounds that the Hospital had not issued an original decision. He made various other comments, complaints and submissions in his request. In a decision dated 26 March 2024, the Hospital refused the applicant’s request on the basis of section 37 of the FOI Act. It said that as the applicant had “not reverted”, a decision was made based on the content of the documents in question. It said that the records of a person, including that of a deceased person, are considered personal information and are exempt from release under section 37 of the FOI Act. It said that there are certain circumstances where the public interest in the release of the record outweighs this exemption but that the applicant had not advised the Hospital of any reason to enable the decision-maker to consider this. On 5 April 2024, the applicant applied to this Office for a review of the Hospital’s decision to refuse access to the records.
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 applicant and the FOI body. I have considered copies of communications between the parties provided to this Office as well as the 2016 Regulations and relevant guidance documents. I have also had regard to the records concerned. I have decided to conclude this review by way of a formal, binding decision.
The Hospital identified nine groups of records as coming within the scope of the applicant’s request. It refused access to the records identified in full on the basis of section 37 of the FOI Act. The review is concerned solely with whether the Hospital was justified in refusing access to medical records relating to the deceased.
Before I address the substantive matters arising in this case, I wish to make a number of preliminary comments. Firstly, I note that an original decision did not issue to the applicant within the relevant statutory timeframe. This amounts to an effective refusal of the request. The applicant in this case sought an internal review of that effective refusal. The Hospital appears to consider the decision it issued to be an original decision. However, I am satisfied that, notwithstanding certain delays in respect of the provision of a relevant death certificate, the Hospital did not issue an original decision within the four-week timeframe stipulated by the Act. As such, the applicant was entitled to seek an internal review and, upon receipt of the decision dated 26 March 2024, was entitled to seek a review by this Office. I would remind the FOI body of its statutory obligations under the Act and encourage decision-makers to ensure that relevant timeframes are adhered to.
Secondly, it is important to note that although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited. It also means that I must limit my description of the Hospital’s submissions regarding why it considers the records to be exempt. Similarly, the provision has implications for the extent to which I can give reasons for my decision.
Thirdly, I note that in his application to this Office and in correspondence copied therein, the applicant made complaints in respect of named staff members of the Hospital. For the avoidance of doubt, 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 with respect to actions taken by FOI bodies or their staff. The applicant also referenced breaches of the General Data Protection Regulation (GDPR). The FOI Act is entirely independent of data protection legislation and this Office has no remit to investigate complaints in respect of alleged breaches of that legislative regime.
Fourthly, in his application, the applicant referenced the Hospital’s apparent initial intention to release the records at issue. He said that the Hospital then “back tracked and denied it”. I note that it does seem as though the Hospital initially intended to provide access to the records requested. However, I note that in the decision which issued, it is clear that the Hospital decided to refuse access in full. There is nothing in the FOI Act which precludes FOI bodies from amending their position in respect of records prior to issuing a decision or indeed during the course of a review by this Office. A review by this Office is considered to be “de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision. I am satisfied that the question at issue is whether the Hospital was justified in refusing access to the records at issue. I do not consider it necessary or appropriate to interrogate the FOI body’s internal deliberative process in respect of FOI.
Finally, I note that the applicant made repeated references to the 1999 Regulations in his correspondence with the Hospital and in his application to this Office. For the avoidance of doubt, the 1999 Regulations were revoked and replaced by S.I. No. 387/2009. Those regulations were in turn revoked by the 2016 Regulations referenced above. While subsequent amendments were made to the 2016 Regulations, they remain in force. It is important to note that the wording of the 1999 Regulations was different to the wording of the 2016 Regulations. The 2016 Regulations provide for a potential right of access to a requester who is the spouse or next of kin of the deceased. The right of access is subject to a public interest test. The 1999 Regulations did not contain an explicit public interest test. While the applicant has referred to revoked regulations I am satisfied that the Hospital did reference the correct regulations in communications with him. I note that in correspondence dated 1 February 2024, the Hospital provided the applicant with a link to the 2016 Regulations and drew his attention to the relevant provision (section 7(b)). For the avoidance of doubt and in the interest of fair procedures, I made the decision to notify the applicant of the relevance of the 2016 Regulations. I provided him with an opportunity to make any relevant submissions in respect of the matter. To date, no such submissions have been received.
Section 37(1)
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)
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 respect of subsection (b), I note that the applicant said that it was his father’s dying wish that his children had all his medical records and that when he was ill he reiterated many times that if anything ever happened to him to “make sure to get all his records”. While section 37(1) does not apply where the individual to whom the information relates consents to its disclosure to the requester, subsection (2) provides that the FOI body must ensure that the consent of the individual is established to its satisfaction before the request is granted. The applicant did not provide any evidence of his father’s consent to the release of the records. As such, I am not satisfied that any such consent has been established. I find, therefore, that none of the provisions of section 37(2) serve to disapply section 37(1) in this case.
Section 37(5)
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. Given the 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 important points to note. Firstly, 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’s position is that he is entitled to access his father’s records as his next of kin. In his original request, he said that he was seeking the records to inspect them and see everything in them. As noted above, in further correspondence with the Hospital he referenced his father’s dying wish that he gains access to the records. The remaining arguments advanced by the applicant relate to the fact that the Hospital appeared to initially agree to release the records. I have already addressed this argument above.
In its submissions, the Hospital said that there is an assumption of confidentiality when an individual embarks on a therapeutic relationship with healthcare providers. It said that releasing the records of the individual would breach that. The Hospital did not provide any substantive submissions in respect of the public interest factors considered.
The applicant’s arguments centre on his status as the next of kin of the individual to whom the records relate. He has not advanced any specific public interest arguments. He has essentially expressed a private interest for seeking access to the records. However, I note that he has stated that when his father was ill he “reiterated many times that if anything ever happened to him to make sure to get all his records”. It seems to me that this could be understood as reflecting a general public interest in ensuring that persons are or were afforded appropriate levels of care and treatment by healthcare providers.
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, 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 accept that the release of the records at issue would, to a certain limited extent, enhance transparency around the levels of care and treatment afforded to the applicant’s father 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 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) and the 2016 Regulations
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 in this case are the 2016 Regulations. 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 notes 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 record is inherently private, and of a very sensitive nature, then it is 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.
I am satisfied that I have summarised the applicant’s arguments and assertions above. In sum, his position is that he is entitled to the records and that his father expressed a wish that he be granted access to same. He said that he wants to inspect the records with “a fine comb”.
The Hospital made submissions in respect of the 2016 Regulations and its decision-making in this regard. However, I am very limited in the extent to which I can reference the specific submissions made as to do so would be to disclose information contained in the records at issue. That said, I believe it is appropriate to say that the Hospital’s submissions relate to certain factors listed above which the Guidance says should be taken into consideration.
The Hospital appears to have arrived at its position having considered the specific contents of the records. It said that it is satisfied that the applicant is the son of the deceased, and therefore his next of kin by virtue of the 2016 Regulations. In respect of why it concluded that the public interest, including the public interest in the confidentiality of personal information, would not, on balance, be better served by granting the request than by refusing it, the Hospital directed my attention to certain information in the records. It said that the applicant did not provide anything that would allow the decision-maker to consider that it was in the public interest to release the records. It referenced statements made by the deceased and other documentation contained in the records. The Hospital said that the Minister’s Guidance was taken into consideration and it said that it made an effort to consult the applicant to establish if the public interest would be better served by granting than refusing the request. It said that the case was judged on its own merit and the public interest in the confidentiality of personal information was balanced against the public interest in the right of the requester to access the records.
The Hospital referenced statements made by the applicant in respect of his father and his wishes. It said that it read the records in full and saw no evidence to support the arguments made. It said that, having considered the contents of the records, it could not find anything to show that it was in the public interest to release the records. It said that it regularly releases records of deceased individuals in accordance with the legislation. However, and with reference again to specific statements in the records, it said that it felt duty-bound to respect the individual’s confidentiality in this case. It said that the applicant stated that he wanted the records as they were his “business, plain and simply”. The Hospital said that this was “not enough” in the context of the records at issue.
The 2016 Regulations do not provide for the release of records solely because the applicant is his father’s next of kin. I note that the applicant has put forward limited submissions as to the question of whether he has a right of access. His responses to the Hospital’s inquiries as to why he wished to obtain the records in question were brief and appear to be based on a belief that he has an inherent right to access the records, which is not the case under FOI.
I accept that the information in the records is of a private and confidential nature. I have carefully considered the contents of the records and what they disclose. The 2016 Regulations provide that an FOI body must have regard to “all the circumstances” when considering whether the public interest would, on balance, be better served by granting than refusing the request. It seems to me that the Hospital had regard to the specific contents of the records and also sought information from the applicant as to why he was seeking the records at issue. The Hospital drew his attention to the relevant Regulations and notified him that it was obliged to have regard to all the circumstances in making a decision. It has directed my attention to specific information in the records which it said it took into consideration.
Having regard to the records and the Hospital’s submissions, I find that the FOI body has sufficiently justified its decision to refuse to release the records to the applicant. Having carefully considered all the evidence before me, I am satisfied that the public interest would, on balance, be better served by refusing the request. 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 on the basis that section 37(1) applies to the requested records.
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.
Alison Connolly
Investigator