Decision
Mr. Y & The Health Service Executive (HSE)
From Office of the Information Commissioner (OIC)
Case number: OIC-151963-B8P4C0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-151963-B8P4C0
Published on
Whether the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to further mental health records relating to the applicant on the ground that no further records exist or can be found and in redacting certain information from the records released under section 37(1) of the FOI Act
15 October 2025
In a request dated 29 April 2024, the applicant sought access to any and all records held in any format by HSE Mental Health at Blackrock Hall Primary Care Centre, Cork from his more recent interactions with them which started in either 2022 or 2023, and for any and all information held in any format by Cork University Hospital (CUH) Liaison Psychiatry at CUH, Cork, where he was seen once in 2024. As the HSE failed to issue its decision on the request within the statutory time-frame, the applicant sought an internal review of the deemed refusal of his request. In a letter dated 2 September 2024, the HSE issued its effective position on the request wherein it part-granted the request. It redacted certain information from the records under subsections (1), (3) and (7) of section 37 of the FOI Act. On 11 September 2024, the applicant applied to this Office for a review of the HSE’s decision. In his subsequent correspondence with this Office during the course of the review, he also indicated that he believed other relevant records should exist apart from those identified by the HSE during its processing of his request.
Moreover, following a request for submissions from this Office, the HSE said it had cited subsections (3) and (7) of the FOI Act in error as a basis for withholding certain information. It said that the accompanying schedule provided to the applicant was correct and the appropriate exemption of section 37(1) was referenced. The applicant was made aware of this and given the opportunity to make further submissions which were duly received.
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 to the submissions made by the HSE 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 HSE identified two files, one containing 29 pages with certain information redacted from pages 3, 4, 6, and 22 and the other containing 47 pages with certain information redacted pages 10, 24, 28, 31, 34, 35 and 39. On the mater of the existence of further records, its position is that no further relevant records exist or can be found. This is, in effect, a refusal to grant access to any further relevant records under section 15(1)(a) of the Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.
Accordingly, the scope of this review is concerned with whether the HSE was justified in (i) refusing access, under section 15(1)(a) of the FOI Act, to any further relevant records coming within the scope of the applicant’s request, and (ii) redacting certain information from a number of the released records under section 37(1) of the FOI Act.
Before I address the substantive matters arising in this case, I wish to make some preliminary comments. First, the HSE did not issue its original decision within the timeframe set down in the FOI Act. Section 13(1) of the FOI Act requires FOI bodies to issue original decisions within four weeks of receipt of requests for records. It is incumbent on me to emphasise to the HSE that the requirement to issue decisions on FOI requests within the periods set out in the FOI Act is clear and unequivocal. The HSE should take steps to ensure that its decisions on FOI requests issue within the relevant statutory timeframes.
Secondly, in submissions to this Office, the applicant raised various concerns and questions about the processing of his request by the HSE and the approach it took. While I will not refer to every point he made in the decision, I confirm that I have had regard to them all. I should note that this Office has no role in investigating complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
Thirdly, in his submissions the applicant said he had previously received medical records from the HSE containing factual errors and omissions. He referenced section 9 of the Act which provides for the potential amendment of incomplete, incorrect or misleading personal information contained in records held by an FOI body. He also said that an individual cannot seek to rectify a record without sight of the record. It is important to note that section 9 does not give an applicant a right of access to an exempt record in order to make a section 9 application. The fact remains that records containing personal information may be exempt, the effect of which is that, in certain circumstances, an individual may not be enabled to exercise the right to have personal information amended in accordance with the provisions of section 9.
Finally, the applicant provided a letter from a trainee psychologist which, in his view, contained false information about him as well as an email concerning this letter he sent to the Head of Psychology at Mercy University Hospital. He was of the view that this correspondence and the information therein could possibly have had a bearing on the HSE’s handling of his FOI request. In further correspondence the applicant raised an additional issue concerning his referral for a pain management procedure and a report in this regard provided by a former employee of HSE Cork Mental Health Services. He is not happy with the content of this report and said it is possible that judgments are being made about his suitability for treatment based on records he has been denied access to, without any opportunity to correct errors or to provide context. It is important to note that this review is concerned with whether the HSE was justified in withholding certain information from the records in question and is not concerned with the accuracy, or otherwise, of the information in the records. Regardless, it is open to the applicant to make an application, under section 9 of the FOI Act, for the amendment of any personal information in any records he believes to be incomplete, incorrect or misleading.
Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. 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 and must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search ” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the records management practices of the FOI body, insofar as those practices relate to the records in question.
I should also explain at the outset that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information sought from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the FOI Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought.
The Investigator asked the applicant to provide submissions as to the records he believed to be missing from the records released. In response, the applicant referenced a letter from HSE Mental Health which confirmed he had been diagnosed with specified conditions which was read to him by his former GP and a letter to HSE Mental Health at Blackrock Hall PCC, Cork which he said was dictated in his presence by his former GP seeking clarification on what medication should be prescribed. He said this letter was sent to a named Consultant Psychiatrist. He also said a discharge note, clinical notes, Multi-Disciplinary Team (MDT) summary and internal or external email trails were not disclosed to him. He questioned whether the HSE had sought records directly from HSE Mental Health at Blackrock Hall PCC, Cork and CUH Outpatient Liaison Psychiatry at CUH, Cork. He said both centres hold physical and possibly electronic files on patients, past and present. He said HSE Mental Health must surely have records on file, whether notes or otherwise, which explain how and why any one or more diagnoses were made, what steps were taken, any actions taken to deal with him with regard to a way forward, a "plan of action " and if not, there should be records existing explaining why certain modalities were not felt suitable or needed.
During the course of this review, the applicant informed this Office that he had made a subject access request under the General Data Protection Regulation (GDPR) to the HSE for the same records sought in his FOI request. We paused our review for four weeks to allow this process to take place and invited the applicant to provide any relevant information released to him as part of the GDPR request. The applicant has provided no further information as a result of this GDPR request to date in support of his contention that further relevant records exist.
In its submissions the HSE said there were only two files in the possession of Cork Mental Health Services for the applicant as a service user and provided a screen shot of the IPMS (patient management system) showing the files. It said both files were retrieved and reviewed in line with the scope of the request. It said that all information in the possession of the Cork Mental Health facility was considered and there were no further files in existence in this area.
In reference to correspondence between the HSE and the applicant’s former GPs, the HSE said all correspondence within the file has previously issued to the applicant. It said that within the period of the FOI request there is no formal letter confirming that he had been diagnosed with the specified conditions but it noted, however that pages referenced 1 to 4 in the information provided indicates this documentation was shared directly with his GP. It said a discharge note, clinical notes, MDT summary, internal and/or external email trail was provided in the documentation released under FOI. It said that within the clinical file, there is no record of a letter to the named Consultant Psychiatrist as referenced by the applicant.
The HSE added that there is a volume of general health information relating to Cork University Hospital which was not processed as it was considered to fall outside the scope of this FOI request but that the applicant could make a separate request for this information if he wished.
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 public body concerned takes all reasonable steps to locate relevant records. Furthermore, it is open to this Office to find that an FOI Body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located. A review by this Office is not concerned with the question of what records should exist. If a record does not exist, that is the end of the matter, regardless of the applicant’s views as to whether or not it should exist. Furthermore, we do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records sought ought to exist.
The records provided by the HSE comprise an initial assessment summary, a Consultant Psychiatrist report, clinical notes, MDT team notes, Home Based Treatment team notes, internal and external email trails and emails between the HSE and the applicant. Many of these appear to be records of a type which the applicant contends were not disclosed to him. The HSE provided this Office with its reasoning for concluding that no further records existed, and the applicant was provided with these details.
The applicant referenced a letter which his former GP read to him confirming his diagnosis, a copy of which he located and provided to this Office during the course of this review as evidence that a reasonable search had not been undertaken by the HSE. Having considered the records, I am satisfied that it is the same document at pages 2 and 4 of record CSE01. This document was provided to the applicant as part of his FOI request with no redactions. On the matter of the letter the applicant said was dictated in his presence by his former GP seeking clarification on what medication should be prescribed, no evidence has been made available to this Office that such a letter was sent to the named Consultant Psychiatrist and the HSE said no such letter is on file. No other evidence has been presented to this Office to suggest that other relevant records might be held in other locations within the HSE
In his correspondence with this Office the applicant referenced the FOI Act being in favour of redaction over outright refusal, stating that, in his view, the HSE’s position that entire files are exempt due to the mere presence of third party information is legally indefensible. In essence his argument is that the records released to him do not contain the information he believes they should contain and he appears to be under the impressions that the HSE has refused to release entire files. However, there is no evidence before me that this is the case and the records provided to this Office comprise files with minimal third party personal information redacted.
As I have outlined above, our role is confined to a consideration of whether the HSE has taken all reasonable steps to locate the records sought by the applicant and whether it has adequately explained why it considers that no further relevant records exist. In this case I am satisfied that it has. I appreciate that it is the applicant’s position that further records should exist and that he will therefore be disappointed with my decision. However, as I have outlined above, it is not within the remit of this Office to examine whether records should or ought to exist.
Accordingly, I find that the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to further relevant records sought by the applicant on the basis that no such records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Section 37
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 concerned would involve the disclosure of personal information, including personal information relating to a deceased individual. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information). Essentially, this means that while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, the request shall be refused pursuant to section 37(7) if that personal information is inextricably linked to personal information relating to parties other than the applicant. Section 37(1) is subject to sections 37(2)(b) to (e), 37(5) and 37(8).
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. It is important to note that the fact that a requester may be aware of the nature of the information at issue or may have even provided some or all of the information to the body in question does not mean that it cannot be regarded as personal information relating to a third party for the purposes of the FOI Act.
The redacted information comprises the names or other identifiers of third party individuals. This information is redacted from a confidential psychiatric report, a letter from the applicant to a named medical professional, medical notes, collateral history provided by a third party, Home Based Treatment team notes and a summary of initial assessment.
In his submissions to this Office, the applicant asserted that he was concerned the HSE has acted in bad faith in its handling of his FOI request. He expressed particular concerns about the HSE’s initial reliance on section 37(3) of the Act and subsequent decision not to rely on this section. He said the HSE failed to consider redaction under section 37.
The HSE said section 37 provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. It said it examined the records at issue and is satisfied that they contain the personal information of other individuals. It said that, while most of the references are negligible, there are allegations in relation to two individuals which contain very sensitive personal information. It said there are some circumstances, provided for at section 37(2), in which this exemption does not apply but it is satisfied that they do not arise in this case.
The applicant raised concerns about the HSE’s use of section 37(3) in the decision and internal review. It is important to note that 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. As such, this review is concerned solely with the HSE’s more recent reliance on section 37(1) to redact certain information.
Having reviewed the records, I am satisfied that all of the information withheld comprises either personal information relating to other third parties or joint personal information relating to the applicant and other third parties. I find, therefore, that section 37(1) applies. However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section, specifically subsections (2) and (5). Accordingly, I must proceed to consider whether any of those other provisions serve to disapply section 37(1) in respect of any or all of the information at issue.
Section 37(2)
Section 37(2) provides that section 37(1) does not apply if;
a) the information concerned relates to the requester concerned,
b) the individual to whom the information relates consents, in writing or other such form as may be determined, to its disclosure to the requester,
c) information of the same kind as that available in the record in respect of individuals generally or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before it being so given, that the information belongs to a class of information that would or might be made available to the general public, or
e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual.
The purpose of section 37(2)(a) is to ensure that section 37(1) cannot apply to information relating solely to the requester. I am satisfied that the withheld information in the records that relates to the applicant is inextricably linked with personal information relating to third party individuals. I am satisfied, therefore, that section 37(2)(a) does not apply.
No argument has been made that any of the circumstances outlined above at subsections (b) to (e) are relevant in this case, nor do I consider any to apply.
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. No argument has been made that section 37(5)(b) applies in this case and I am satisfied that it does not apply.
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, such as under sections 37(2)(a) and 37(8), 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.
In its submissions, the HSE said it considered the following factors in favour of release:
• the public interest in members of the public knowing that information held by public bodies about them, or those they represent, is accurate
• the public interest in members of the public exercising their rights under the FOI Act
• the public interest in FOI bodies being open and transparent about how services are conducted
It considered the following factors against release:
• the public interest in protecting the right to privacy of members of the public
• the public interest in members of the public being able to communicate in confidence with public bodies and without fear of disclosure in relation to personal or sensitive matters
• the public interest in safeguarding the flow of information to public bodies
It said that while it accepted that all of the information being withheld was provided by the applicant, there is a wider public interest in having a confidential medical service where the expectation is that third party information will not be shared without obtaining explicit consent from the third parties to whom the information relates. It considered that the redacted records contain information of a private and personal nature and concluded that the public interest in granting access to those records did not, on balance, outweigh the right to privacy of the third parties.
While the applicant has made no specific public interest arguments in respect of the records redacted under section 37, he said that, in the weighing of competing rights regarding disclosure the HSE is biased, is unfairly restricting access and has simply continued by other means to try to stop him obtaining personal information which it holds. He also referenced the FOI Act’s purpose being to enable individuals to access their personal information and to ensure transparency in how public bodies conduct their affairs.
I accept that there is a public interest in individuals ensuring that information held about them is accurate and in enhancing the transparency and accountability of the HSE in respect of the level and nature of care and treatment afforded to individuals. It seems to me that those interests have been served to a significant degree by the release of the vast majority of the information the HSE holds in respect of the applicant’s care and treatment and it is not apparent to me that the release of the withheld information at issue would further enhance that transparency and accountability to any significant degree. The question I must consider is whether those public interest factors in favour of release of the withheld information outweighs, on balance, the privacy rights of the relevant third parties. In my view, they do not.
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 it 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). While I accept that some of the information is not of a particularly sensitive nature, I must have regard to the fact that the release of the records must be regarded, in effect, as release 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 that the public interest in releasing the information at issue outweighs, on balance, the privacy rights of the relevant third parties. I am not satisfied that any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information at issue exists in this case. Accordingly, I find that section 37(5) does not serve to disapply section 37(1) in respect of any of the information at issue.
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 refusing further access to records under section 15(1)(a) of the Act. I also find that it was justified in redacting certain information from the records at issue 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.
Stephen Rafferty
Senior Investigator