Decision
Mr. X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-147868-C1K5X1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-147868-C1K5X1
Published on
Whether the Health Service Executive (HSE) was justified in refusing, under section 37(1) of the FOI Act, the applicant’s request for access to his daughter’s medical records from the Child and Adolescent Mental Health Service
4 December 2024
On 3 September 2023, the applicant sought access to his minor daughter’s medical records from the HSE’s Child and Adolescent Mental Health Services (CAMHS).
In a decision dated 21 November 2023, the HSE refused access to the records in their entirety on the basis of section 37(1) of the FOI Act. The applicant requested an internal review of the original decision and on 27 February 2024, the internal reviewer affirmed the original decision to refuse access to the records in their entirety. On 29 March 2023, the applicant applied to this Office for a review of the HSE‘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 his application to this Office for review 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 considered section 37 of the FOI Act, the corresponding statutory instrument (SI No. 218/2016) (the 2016 Regulations) and the Guidance Note issued by the FOI Central Policy Unit of the Department of Public Expenditure and Reform in relation to requests by parents for records of minor children (Central Policy Unit Notice 25, available at foi.gov.ie). I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the HSE was justified in refusing the applicant access to his minor daughter’s medical records in their entirety, under section 37 of the FOI Act.
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. 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).
Personal information is defined in section 2 of the FOI Act 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 details 14 specific categories of information that is personal, without prejudice to the generality of the definitions provided for in (a) and (b) above. Included in the 14 categories is information relating to the educational, medical, psychiatric or psychological history of the individual.
The records at issue in this case comprise the mental health records of the applicant’s daughter. I am satisfied that all of the information at issue comprises either personal information relating solely to the applicant’s daughter or joint personal information relating to the applicant’s daughter and other individuals. I find, therefore, that section 37(1) applies to all of the records at issue. That being said, section 37(1) is subject to the other provisions of section 37, which I will analyse below.
Section 37(2) provides that section 37(1) does not apply if;
a) subject to subsection (3), the information concerned relates to the requester concerned,
b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester,
c) information of the same kind as that contained 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 its 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,
No argument has been made that any of the provisions of section 37(2) apply in this case and I am satisfied that they do not.
Section 37(5) provides that a request which would otherwise be refused under section 37(1) may be granted where, on balance (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the person to whom the information relates. No argument has been made that the granting of the request, would benefit the applicant’s daughter and I am satisfied that it would not. 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. First, section 13(4) of the Act provides that in deciding whether to grant or refuse an FOI request, any reason that the applicant 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 when records are released under the FOI Act they are considered, in effect, to be released to the world at large, as the Act places no constraints on the uses to which a released record 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) (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 inThe 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 a case involving commercial sensitivity and confidentiality, I consider them to be relevant to the consideration of public interest tests generally.
The applicant has not identified any public interest in support of the release of the records at issue in this case. Indeed, I note that in his application to the HSE for an internal review of the original decision to refuse his request, he described his request as private. Nevertheless, I accept that there is a public interest in allowing for scrutiny of both how the HSE provides child and adolescent mental health services and of the level and quality of care provided.
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, including those afforded to deceased persons under the FOI Act, 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).
The records at issue in this case are of an inherently private and sensitive nature. Having regard to that fact and to the fact that the release of the records must be regarded as being effectively, or at least potentially, to the world at large, I am not satisfied that there is any sufficient strong public interest in release that would outweigh, on balance, the strong public interest in protecting the privacy rights of the applicant’s daughter. I find, therefore, that section 37(5)(a) does not apply.
Section 37(8) of the Act provides that notwithstanding section 37(1), the Minister for Public Expenditure and Reform (the Minister) may make regulations for the grant of an FOI request in certain circumstances where the requester is the parent of an individual who has not attained full age to whom the record relates and having access to the record would, having regard to all the circumstances, be in the individual’s best interest. The relevant regulations are the 2016 Regulations referred to above.
Among other things, the 2016 Regulations provide for a right of access by a parent or guardian of an individual who has not attained full age to records containing personal information relating to the individual where the FOI body considers that, having regard to all the circumstances, access to the records would be in the individual's best interests. The Minister has published guidance on the application of the 2016 Regulations, in accordance with section 48(1) of the FOI Act. Section 48(3) of the FOI Act requires FOI bodies to have regard to guidelines published by the Minister in the performance of their functions.
The guidance provides that the factors to be considered in cases involving records relating to minors include;
• whether the minor would consent to the release of the material,
• whether release of the material would damage the minor in some way, and
• whether the records are held in the minor’s own right
I should state here that under section 25(3) of the Act, I am required 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 at issue is limited. It also means that I cannot provide full details of the submissions made by the HSE outlining why it considers the records in question to be exempt.
I can say, however that the HSE described the records as detailing clinical assessments and interventions with the applicant’s daughter, and family dynamics and relationship matters. It said the applicant’s daughter continues to attend mental health service. It said that in reaching a decision in relation to her best interests, both the treating Psychiatric Consultant and her medical team were consulted with. It said a minor needs to have confidence and trust in providing information to the services in order for the service to support the minor’s needs. It said that the release of the records at issue would be damaging to this therapeutic relationship. While I am not in a position to describe the specific information, it pointed to various extracts from the records that it considered to support its determination that it is not in the minor’s interest to release her records to the applicant.
In considering whether the release of the records would be in the minor’s best interests, it is relevant to note that the Supreme Court held in the case ofMcK v. The Information Commissioner [2006] IESC 2, available at www.oic.ie that a parent is entitled to a rebuttable presumption that access to his or her child's medical information is in the best interests of the child. The Court noted, however, that evidence may be produced that it would not serve the child interests and in considering the circumstances, the child’s welfare is paramount.
Having carefully considered the inherently sensitive nature of the records at issue and having regard to the HSE’s submissions and to the fact that the applicant’s daughter continues to attend the HSE’s mental health services, I am of the view that it would not be in the best interest of the applicant’s daughter to grant access to the records. I find that the 2016 Regulations do not apply in this case.
In conclusion, therefore, I find that the HSE was justified in refusing, under section 37(1) of the FOI Act, the applicant’s request for access to his daughter’s medical records.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision to refuse, under section 37(1) of the FOI Act, the applicant’s request for access to his daughter’s medical 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.
Stephen Rafferty
Senior Investigator