Decision
Mrs P and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-155384-C8V6D9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-155384-C8V6D9
Published on
Whether the HSE was justified in refusing, under section 37(1) of the FOI Act, access to medical records requested in respect of the applicant’s late husband
15 July 2025
The applicant in this case was represented by a solicitor during the course of this review and therefore all references to communications with the applicant in this decision should be taken to include communications with the applicant’s solicitor where appropriate. In a request dated 29 April 2024, the applicant sought access to certain information that had been redacted or was missing from medical records relating to her deceased husband that were released on foot of a previous request.
As the HSE failed to issue a decision within the statutory time-frame, the applicant sought an internal review of the deemed refusal of her request on 28 May 2024. The HSE issued its internal review decision on 17 August 2024, wherein it refused the request under section 37(1) of the FOI Act. On 15 January 2025, the applicant applied to this Office for a review of the HSE’s decision.
During the course of the review, the HSE said that owing to an administrative oversight, the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (the 2016 Regulations), which provide for a right of access to the records of deceased persons in certain circumstances, were not referenced in the original decision letter. It said that the 2016 Regulations and related Guidance issued under those Regulations were considered as part of the decision-making process. The applicant was notified of the potential relevance of the 2016 Regulations following which further submissions were 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 HSE and the applicant. I have also examined both the records at issue and the records released on foot of the earlier, connected request. I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by the HSE during the processing of her request.
The scope of this review is concerned solely with whether the HSE was justified in refusing access, under section 37(1) of the FOI Act, to certain information withheld from pages 7, 8, 12, 16, 27 and 28.
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).
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. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition, including information relating to the medical, psychiatric or psychological history of the individual.
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act 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 information at issue is limited. Nevertheless, I believe I am not in breach of section 25(3) by noting that the information is contained within the mental health records of the applicant’s deceased husband. Accordingly, I am satisfied that the release of the information would involve the disclosure of personal information relating to the deceased.
A small amount of the information also relates to the applicant. However, I am satisfied that such information is inextricably linked to personal information relating to the deceased and that the release of the information would also involve the disclosure of personal information relating to the deceased. I find, therefore, that section 37(1) applies to all of the information at issue. 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), (5), and (8). 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) 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,
No argument has been made that any of the circumstances outlined above apply in this case and I am satisfied that they do not. I find accordingly that section 37(2) does not serve to disapply 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.
On the applicability of section 37(5)(b), the applicant said her late husband would have wanted the request to be granted. She said she looked after her late husband and they remained together as husband and wife until his death. She said they were in a loving marital relationship and cared deeply for each other. She said her late husband’s untimely death has been a cause of great grief and a burden to her and she can say without doubt that her late husband would have wanted the records released in order to shed light on what happened and to assist her in prosecuting litigation against the HSE if appropriate as well as providing comfort to her. She said that while these latter reasons are not public interest reasons, they are factors that can and should be taken into account. She acknowledged that while this aspect of her submission involves hypothesis, the language of section 37(5)(b) clearly applies to the benefit accruing to “the individual” with that term being referenced in section 37(1) as including “a deceased individual”. She said the Minister’s Guidance Notes also reflect this position.
In essence, the applicant has argued that her late husband would have wanted her to have access to his records. However, the question I must consider in respect of the applicability of section 37(1)(b) is not whether the person to whom the information relates would have
wanted access to be granted to the records but rather whether the grant of the request would benefit the person. I simply cannot see how the release of the information at issue in this case would benefit the deceased, nor has the applicant explained, in my view, how it would. 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) 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) and the 2016 Regulations 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 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 cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In her application for review, the applicant said the records being withheld are of material interest to her pursuit of justice. She said the records requested will prove pivotal in forming a more conclusive and cogent understanding of the circumstances and the overall standard of care or lack thereof evidenced towards her late husband at the time of his passing. In subsequent submissions, the applicant said there is a public interest in ascertaining the cause of her husband’s death and further ascertaining whether any failures took place on the part of the FOI body that caused or contributed to his demise. She said the release of the records will assist in ascertaining the sequence of events (and whether there were any deficiencies in the care provided to the deceased) on the part of the FOI body leading up to his death. She said it is in the public interest to reveal what happened so that the risk of such future occurrences can be minimised.
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 Acts, and
• the public interest in FOI bodies being open and transparent about how services are conducted.
It said that it considered the following factors against release:
• the public interest in protecting the right to privacy.
• the public body must respect the right of third parties in ensuring that their personal information remains confidential,
• protecting the confidentiality of information imparted to the HSE in respect of sensitive matters,
• the public interest in members of the public being able to communicate in confidence with the public body in matters relating to personal and sensitive matters and ally concerns in relation to matters without fear of disclosure and identification,
• the provision of information by individuals in respect of sensitive matters concerning vulnerable individuals now and in the future, and
• the public interest in safeguarding the flow of information to public bodies.
The HSE added that, with the exception of the collateral information which was provided by the applicant at page 16, all of the other withheld information was provided to the Mental Health Services by the applicant’s late husband. It said confidentiality is central to trust in the doctor-patient relationship, to safeguard a patient’s dignity, privacy and autonomy and extends after death. It said the safeguarding of patient personal information is a fundamental principle of medical ethics which dates back to the Hippocratic Oath and maintaining confidentiality in relation to a patient’s personal information is both a patient’s right and a doctor’s duty.
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).
The essence of the applicant’s arguments is that release of the records at issue would enhance the transparency and accountability of the HSE in respect of the standard of care afforded to her late husband. I understand and sympathise with the applicant’s desire to understand the circumstances surrounding the death and the standard of care provided to her late husband by the HSE and I fully accept that she has identified a valid public interest argument in favour of granting the request.
On the other hand, it is also very important to restate that the release of records under FOI must be regarded, potentially at least, as release to the world at large. As I have already outlined, 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 deceased. Given the inherently private and highly sensitive nature of the information at issue, I am satisfied that there is no such overriding public interest in the release of the records. Accordingly, I find that section 37(5)(a) does not serve to disapply section 37(1) in respect of any of the information at issue.
Section 37(8) provides that notwithstanding subsection (1), the relevant Minister may provide by regulations for the grant of an FOI request where;
(a) the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual, or
(b) the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations.
As I have outlined above, the relevant regulations are the 2016 Regulations. Among other things, the Regulations provide that, notwithstanding section 37(1), a request may be made for records which involve the disclosure of personal information relating to a deceased individual, and shall, subject to the other provisions of the FOI Act 2014, be granted where the requester is the spouse or the next of kin of the individual and the FOI body considers, 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. The Minister has also 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.
I should say at this point that the 2016 Regulations do not provide for the release of personal information of any party other than the relevant deceased person. Neither do they provide for the release of personal information of the deceased person where that information is inextricably linked with the personal information of another party. Accordingly, I have not considered the applicability of the 2016 Regulations to lines 3 to 6 of page 8, which I find to comprise joint personal information relating to the deceased and a third party other than the applicant. I have considered section 37(8) and the 2016 Regulations only in relation to the information that relates solely to the deceased or to the deceased and the applicant.
In its submissions, the HSE said it is strongly of the view that the information at issue should be withheld. It said all of the information is extremely sensitive and that the provision of the requested information to the applicant carries the potential to damage the good name and character of the deceased. It described details of the withheld information and said that the release of the information would result in a significant breach of the deceased’s right to privacy and dignity. While section 25(3) prohibits me from including the full details of the HSE’s submission in this decision, I can confirm that I have had regard to the full submissions.
Following consideration of the HSE’s submissions, and having regard to the contents of the records at issue, this Office asked the HSE to clarify the basis on which the decision was made to release certain information and redact other information, and to explain its rationale for redacting certain information in pages 12 and 16 in light of the fact that the information in question appeared to have been given to the HSE by the applicant in respect of her husband’s care. In its response, the HSE said its position as outlined in its original submissions remained the same. It again described the information at issue as extremely sensitive and referenced certain such information as contained in the records. It said that while it understands that the applicant is or may be aware of certain information, it considers that releasing copies of the withheld information would result in a significant risk of a breach of the deceased’s right to privacy.
The question I must consider in this case is whether, 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 applicant’s request. As the 2016 Regulations require that regard must be had to "all the circumstances", relevant circumstances cannot be excluded solely on the basis that they are not public interest factors. The Guidance referenced above provides that it is a matter for the decision-maker to make such enquiries and engage in such consultation as is necessary to allow him or her to decide if the public interest would be better served by granting than by refusing the request. It suggests that certain factors should be taken into consideration when deciding if release is appropriate to the spouse or next of kin of the deceased, including:
• 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.
Furthermore, in considering the nature and confidentiality 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.
I fully accept that the information at issue in this case is of an inherently private nature. Nevertheless, it is very relevant, in my view, that the applicant is very likely to be aware of the nature of most, if not all, of the information at issue and that it was the applicant herself who provided some of the information during the course of her husband’s care and treatment that has been withheld. I also note that some information that has been released on foot of the first request is quite similar to some of the information that remains at issue in this case.
On the matter of the release of records pursuant to the FOI Act being regarded, in effect, as release to the world at large, the fact remains that the Oireachtas 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 a reasonable ground for refusing access to a category of requester that the Oireachtas has determined should be granted access, nor do I accept that records should be withheld solely on the basis of their inherently private nature. The Regulations require that regard is had to all the circumstances in considering where the balance of the public interest lies.
No evidence has been presented to this Office to suggest that the deceased would not have consented to the release of the records to the applicant when living, nor is it apparent to me that he would have had any such objections in circumstances where the applicant appeared to be aware of the information and provided some of the information in the course of his treatment and care. I accept the applicant’s evidence of the strong and loving relationship she shared with the deceased and I do not accept that the release of the records to the applicant would damage the good name and character of the deceased in this case. I further accept that there is a strong public interest in the applicant being in a position to form a more conclusive and cogent understanding of the circumstances and the overall standard of care afforded to the deceased.
Having regard to all of the circumstances, and having carefully considered the contents of the records at issue, I find that the public interest would, on balance, be better served by granting than by refusing to grant the request. I find, therefore, that the HSE was not justified in refusing the applicant’s request for her late husband’s records under section 37(8) of the FOI Act and the 2016 Regulations.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE’s decision. I find that the HSE was not justified in refusing, under section 37(8) of the Act and the 2016 Regulations, the applicant’s request for access to her late husband’s records and I direct the release of the records, with the exception of lines 3 to 6 of page 8 which I find to be exempt under section 37(1) of the 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 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