Decision
Ms D and St. James's Hospital
From Office of the Information Commissioner (OIC)
Case number: OIC-143844-J5G6N1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-143844-J5G6N1
Published on
Whether the Hospital was justified in refusing the applicant access to her deceased mother’s medical records under section 37(1) of the FOI Act
13 August 2024
On 20 August 2023, the applicant submitted a request to the Hospital for access to her deceased mother’s medical records. As the Hospital failed to issue its decision within the statutory timeframe, she sought an internal review of the deemed refusal of her request on 13 October 2023. On 23 November 2023, the Hospital refused the request under section 37(1) of the FOI Act. On 14 November 2023, 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. I have decided to conclude the review by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, and to the correspondence between this Office and both the Hospital and the applicant on the matter. I have also had regard to the contents of the records at issue, the provisions of the FOI Act and the relevant guidance published by the Minister for Public Expenditure and Reform (‘the Minister’) under section 48(1) of the FOI Act (i.e. Central Policy Unit Notice 25 – ‘Access to records relating to deceased persons prepared under section 37(8) of the Freedom of Information Act 2014’).
This review is concerned solely with whether the Hospital was justified in its decision to refuse the applicant’s request for her deceased mother’s medical records under section 37(1) of the FOI Act.
Before I consider the substantive issue, I would like to make a number of preliminary comments. First, section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. Therefore, the extent to which I can discuss certain information contained in the records at issue is limited.
Secondly, section 22(12)(b) of the FOI Act provides that when a decision to refuse a request is reviewed, there is a presumption that the refusal is not justified unless the public body “shows to the satisfaction of the Commissioner that the decision was justified”. Therefore, the onus is on the Hospital to justify its refusal of the request in this case
Finally, it should be noted that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
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 relating to a third-party, including personal information relating to a deceased individual.
Section 2 of the FOI Act defines the term ‘personal information’ and also lists 14 non-exhaustive examples of what must be considered to be personal information, including (i) information relating to the medical or psychiatric history of an individual. Having examined the contents of the records at issue, I am satisfied that their release would involve the disclosure of personal information relating to the applicant’s mother and a limited amount of information relating to other third-parties. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37.
Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply.
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. I am satisfied that section 37(5)(b) of the FOI Act does not apply in this case.
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 section 37(8), which I 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 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 this case, while the applicant did not identify any specific public interest factors in favour of the release of the records at issue that might outweigh, on balance, her mother’s privacy rights, she indicated in her correspondence with the Hospital that she wanted access to the records out of personal interest for her mother’s health up to her passing. While this is, in essence, a private interest for seeking access to the records, it seems to me that her reasons for seeking access to the records are reflective of a wider public interest in ensuring that individuals are afforded appropriate levels of medical treatment in publicly funded facilities.
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.
As I have outlined above, the release of the records must be regarded, in effect, as release to the world at large. As the records at issue in this case contain personal information of an inherently private and sensitive nature, I am satisfied that the public interest in releasing the records does not outweigh, on balance, the privacy rights of the applicant’s deceased mother. I find, therefore, that section 37(5)(a) does not apply in these circumstances.
Section 37(8) provides that, notwithstanding subsection (1), the Minister may make regulations for the grant of an FOI request in certain circumstances where the requester is the next of kin of the individual to whom the record relates or where the individual to whom the information relates is deceased. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016). These 2016 Regulations provide for the grant of access to the records of a deceased individual if the requester is the spouse or the next of kin of the individual and the FOI body considers, having regard to all the circumstances, that 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. The Hospital accepts that the applicant qualifies as the next of kin in this case.
As I have outlined above, the Minister has published guidance under section 48(1) of the FOI Act concerning access to records relating to deceased persons. Under section 48(3), FOI bodies must have regard to such guidance in the performance of their functions under the Act. The relevant guidance provides that certain factors should be taken into consideration when deciding if release is appropriate to the next of kin of the deceased, including:
• the confidentiality of personal information as set out in section 37(1);
• whether the deceased would have consented to the release of the records to the requester when living;
• Whether the person outlined arrangements in his or her will or other instrument in writing consenting to release of personal records;
• whether the 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; and
• The nature of the records to be released.
The Hospital’s submissions
In its submissions to this Office, the Hospital noted that the guidance provides that if the record is inherently private and of a very sensitive nature, then there must be compelling reasons for release, which might include the release to a blood relative of records that show a hereditary medical condition. It noted that the guidance further provides that in relation to medical records in particular, 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’).
The Hospital said that as well as personal medical information, the records at issue also contain references to third-parties including family members. It said it did not know what relationship that applicant has with the other family members, or which sibling within the family the applicant was. It said it considered that, on balance, the public interest would be better served by refusing the request. The Hospital noted the fact that release under FOI is, in effect, release to the world at large. It said it refused the request under section 37(1) as the applicant had not provided a compelling reason for the release of the records.
My Analysis
It is important to note at the outset 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. Therefore, I have considered the applicability of the Regulations in respect of the information in the records that relates solely to the deceased and/or joint personal information that relates to the deceased and the applicant only. No information whose disclosure would also involve the disclosure of personal information relating to third-parties other than the applicant or her deceased mother falls to be considered for release under the Regulations.
It would appear that in deciding to refuse the request, the Hospital placed significant weight on the generally inherently private nature of medical records and on the fact that the applicant had not provided a compelling reason for their release. While I fully accept that by their very nature medical records are inherently private, it seems to me that by making specific provision for access to the records of deceased persons in the Regulations, the Minister has determined that a next of kin would have a potential right of access to medical records. Had it been intended that medical records would not potentially fall for release, such a restriction could easily have been provided for.
It is also relevant to note that while the Medical Council Guide referenced by the Hospital notes that a medical professional’s duty of confidentiality remains even after a patient’s death, it also acknowledges that the confidentiality of medical records is not absolute. For example, it provides that if it is unclear whether the patient consented to the disclosure
of information after their death, the medical professional should consider how the disclosure might benefit or cause distress to the deceased’s family or persons close to them and should also consider the effect of disclosure on the reputation of the deceased and the purpose of the disclosure. Moreover, the Guide expressly notes that “Freedom of Information legislation also provides for disclosure of information to designated persons in limited circumstances”.
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 a request. It seems to me that the Hospital did not have adequate regard to the specific contents of the records at issue when considering “all the circumstances”. It did not, for example, identify any particular information in the records that was of such sensitivity that the deceased would reasonably have expected it to be withheld from her next of kin, nor is it apparent to me that the records contain any such information. No evidence has been presented to me to suggest that the deceased would have withheld consent to the release of the records to her next of kin when living, nor do I see anything to suggest that release would damage the good name and character of the deceased. On the matter of the nature of the relationship between the applicant and her deceased mother, I note that the records reference the fact that the applicant attended medical appointments with her mother and that she acted in a caring capacity for her before her death.
On the matter of the Hospital’s concern that the release of records under FOI is, in effect, release to the world at large, I fully accept this to be the case. This is true of all records released under FOI regardless of the identity of the requester. Indeed, it is also true of requests where the requester seeks his/her own personal information. Nevertheless, the fact remains that the Minister saw fit to determine that access to the records of deceased persons shall be granted to certain categories of requesters, provided the requirements of the 2016 Regulations have been met. Accordingly, I do not accept that the fact that the release of records under FOI is essentially release to the world at large provides, of itself, a reasonable ground for withholding records from a category of requester that the Minister has determined should be granted access.
Having regard to all the circumstances of this case, I am satisfied that the public interest would, on balance, be better served by granting the applicant's request for all relevant information in the records relating to her deceased mother.
In conclusion, therefore, while I find that the Hospital was justified in refusing access, under section 37(1) of the Act, to any information in the records at issue whose disclosure would involve the disclosure of personal information relating to third-parties other than the applicant or her mother, I find that it was not justified in refusing access to the information in the records relating to the applicant or her mother under section 37(8) of the FOI Act and the 2016 Regulations. I direct it to release the records subject to the redaction of any information whose disclosure would involve the disclosure of personal information relating to third-parties other than the applicant and/or her deceased mother. For avoidance of doubt, I would add that the applicant would have the usual rights of review in relation to the extent of the Hospital’s redactions. I would also suggest that the Hospital may first wish to afford the applicant an opportunity to consider if she might be in a position to provide the consent of other family members to the release of any of their personal information that might be contained in the records.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Hospital’s decision. While I find that it was justified in refusing access, under section 37(1) of the Act, to certain personal information contained in the medical records of the applicant’s deceased mother relating to third-parties other than the applicant or her mother, I find that it was not justified in refusing access to the information in the records relating solely to her mother or to joint personal information relating to the applicant and her mother and I direct it to release that information.
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 by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Stephen Rafferty
Senior Investigator