Decision
Ms Y and Marymount University Hospital & Hospice
From Office of the Information Commissioner (OIC)
Case number: OIC-123578-B1X4L9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-123578-B1X4L9
Published on
Whether the Hospital was justified in refusing access to parts of the medical records of the applicant’s late mother
17 April 2024
In a request dated 4 October 2021, the applicant sought access to all medical records relating to her late mother who had been a patient in the Hospital. She subsequently completed an application form at the Hospital’s request wherein she sought “any information held on [her] mother … between 15/04/21 – 03/07/21 care plan [and] home care team notes”. On 12 January 2022, the Hospital issued its decision wherein it purported to grant the request. On 8 February 2022 the applicant sought an internal review of the Hospital’s decision on the ground that records she knew to exist were not released, including correspondence from her late mother’s oncologist and certain incident reports.
On 14 February 2022, the internal reviewer informed the applicant that the letters from external organisations could not be released on the ground that the Hospital is not the owner of the information. She said the letters could be requested through the original source. The Internal reviewer also refused access to the incident reports on the ground that they relate to staff incidents and do not form part of the patient record. No specific provisions of the FOI Act were cited in support of the Hospital’s refusal to release the records in question. On 17 May 2022, the applicant applied to this Office for a review of the Hospital’s decision.
During the course of the review, the Hospital released a further tranche of records to the applicant, namely the correspondence from her late mother’s oncologist, which it accepted it held for the purposes of the FOI Act. It also transpired that redactions were made to many of the records released under section 37(1) of the Act, which is concerned with the protection of third party personal information.
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 her application for review and to the submissions made by the Hospital in support of its decision. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision. When referring to individual records in this decision, I have adopted the numbering system used by the Hospital in the schedule of records it prepared for the purposes of the review. Moreover, as the Hospital’s engagements with this Office during the review were through its legal representatives, all references to communications with the Hospital in the remainder of this decision should be read as including communications with its legal representatives, as appropriate.
The Hospital included 62 records in the schedule of records provided to this Office. The schedule indicated that access was granted in full to 11 records, access was granted in part to 47 records with the redaction of certain information under section 37(1) of the Act, and four records were withheld in their entirety under sections 30(1)(a), 30(1)(b), and 37(1). During the review, the applicant indicated that additional relevant records should exist. The Hospital’s position is that no further relevant records exist or can be found. This is, in essence, a refusal under section 15(1)(a) of the Act on the ground that the records sought do not exist or cannot be found.
Accordingly, this review is concerned with whether the Hospital was justified in refusing access, in whole or in part, to the records sought under sections 15(1)(a), 30(1)(a), 30(1)(b) and 37(1) of the FOI Act.
Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, the Hospital’s handling of the applicant's request and its subsequent engagements with this Office fell well below the required standards. This Office encountered significant impediments in obtaining relevant information in order to progress the review. Overall, as will be set out below, the Hospital’s engagement with this Office led to a great deal of confusion and delay.
Secondly, as has previously been explained to the applicant, 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. Our review is confined to a consideration of the decision made by the Hospital on the applicant’s FOI request.
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. In such cases, the role of this Office 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 I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
During the course of the review, the Hospital provided submissions to this Office in which it provided details of the searches carried out for relevant records and of its explanation as to why no further relevant records could be found. As this Office has already provided the applicants with those details, I do not propose to repeat them in full here.
In summary, it is the Hospital’s position that in light of the searches undertaken, it is satisfied that all records falling within the scope of the applicant’s request have been identified. By way of background, the Hospital referred to ‘The Guide to Professional Conduct Ethics’ issued by the Medical Council of Ireland. It said this Guide requires that medical records be kept accurate, up-to-date and, when a medical practitioner is working in out-of-hours services, they are required to make every effort to ensure that medical notes about a service user are placed in their medical record. The Hospital said it complies fully with this guidance in relation to medical records, has implemented various policies and procedures relating to the maintaining of records and provides training to its personnel to ensure that those policies and procedures are full understood and adhered to. It said all medical records are therefore stored on a service user’s medical file.
More specifically, the Hospital said all medical records including medical files, care plan and medical notes, prepared by the relevant Palliative Care Team relating to the applicant’s late mother are held on a specific personal file relating to her. It said this medical file is centrally located and held in electronic format. It said that following receipt of the applicant’s request, the Hospital accessed the file and undertook a review of it for the purpose processing the request. It said that in light of the above, it is satisfied that no other records coming within the scope of the applicant’s request are held by it, and that all correspondence obtained from the oncologist are contained within the medical file that was released. It said no medical records were disposed of and that, in light of the above, all necessary personnel were consulted for the purpose of undertaking appropriate and necessary searches. In sum, it is the Hospital’s position that all reasonable steps have been taken to ascertain the whereabouts of records coming within the scope of the applicant’s request and that no further relevant records exist or can be found.
Following receipt of the details of the Hospital’s submission, the applicant reiterated that she was seeking access to the information which had been refused to her in the records. With regard to any further records which she believes to exist, the applicant said that she would have expected that a careplan for her mother would have been amongst the records identified. When the Investigator in this case put this to the Hospital it said that all records relevant to the applicant’s mother had been identified. It further said that it was not apparent to it what specifically the applicant was referring to and reiterated its comments that all relevant documents had been identified.
It is important to note that the FOI Act is concerned with access to records held by public bodies that actually exist, as opposed to records that a requester believes ought to exist. If the record sought is not held by the body, then that is the end of the matter. The Act does not require public bodies to create records in order to respond to requests for information or questions that a requester may have.
The question I must consider is whether the Hospital has taken all reasonable steps to ascertain the whereabouts of relevant records in this case. Having considered the details of the searches undertaken and its explanation as to why no further records exist or can be found, and in the absence of further supporting evidence to suggest that specific additional searches may be warranted, I am satisfied that it has.
I find, therefore, that the Hospital was justified in refusing access to further records apart from those already identified as relevant to the review on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Section 30
The Hospital refused access to four incident reports (records 59 to 62) on the basis of both sections 30(1)(a) and (b) of the FOI Act.
Section 30(1)(a) provides for the refusal of a request if the FOI body consider that access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Where an FOI body relies on this provision, it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur.
Section 30(1)(b) provides for the refusal of a request if the FOI body considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff). Where an FOI body relies on this provision, it should identify the relevant function relating to management and identify the significant adverse effect on the performance of that function which is envisaged. It is important to note that significant adverse effect requires stronger evidence than the prejudice standard of section 30(1)(a). The FOI body should also consider the reasonableness of the expectation that the harm will occur.
In relation to both provisions, the FOI body should explain how and why, in its opinion, release of the records at issue could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) or 30(1)(b) must be made on its merits and in light of the contents of each particular record and the relevant facts and circumstances of the case.
Submissions
In its submission to this Office, the Hospital said its palliative care service often involves its staff working alone or in isolation in what is generally a distressing and emotional period for service users and their relatives. It said it is committed to the protection and wellbeing of its patients, employees, volunteers, visitors and others as well as demonstrating probity in all matters relating to management and legislative compliance. It said it recognises the importance of learning from incidents and therefore promotes an environment within which individuals and groups are encouraged to report incidents promptly and openly within a framework which does not seek to apportion blame.
The Hospital added that the Safety, Health and Welfare at Work Act 2015 (the 2015 Act) requires it, amongst other obligations, to identify all hazards in the workplace and keep a written assessment of the risks associated with each hazard, known as a risk assessment. It said it is required to review this risk assessment and to implement any such control measures or improvements which are identified by the Risk Assessment. It said that to complement this Act, the Health and Safety Authority (HAS) issued guidance in relation to lone working within the Healthcare Sector. It said it is committed to managing and conducting its work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health, and welfare at work of its employees and others who may be affected by the provision of its services. It said it has implemented various health and safety policies, and procedures to ensure the safety, health and welfare of its employees and ultimately its compliance with the guidance and the 2015 Act.
The Hospital explained that risk assessments must be reviewed periodically and in the context of any reported incident. It said that in an effort to mitigate risk, and ensure the safety of its staff, it is required to provide lone workers with relevant background information about experiences reported from previous visits and implement an incident reporting procedure. In addition, it said it is required to implement clear procedures relating to the sharing of information with colleagues concerning behaviour hazards and challenging encounters with patients, their families and friends.
Turning to the four incident reports at issue in this case, the Hospital said the records were prepared in compliance with the Hospital’s Policy, Procedure and Guidelines for Risk Management. It said the reports facilitate the Hospital capturing information relating to incidents, accidents and near misses in respect of the delivery of its services and the performance of its functions. It said the reports were prepared by its staff and relate to specific behavioural hazards and COVID-19 risks experienced by them. It said this information was essential for the Hospital to undertake the ongoing assessment of its services and to ensure that all necessary measures are adopted in the design and delivery of those services. It said it is important that staff of the Hospital are able to report such experiences and information in a confidential and efficient manner and without fear of reproach.
The Hospital added that it has undertaken internal inquiries with a sample of staff from its Community Palliative Care Team to assess any concerns they might have in relation to the possible release of incident reports relating to behavioural hazards. It said incident reports relating to behavioural hazards specifically identify individuals and the behaviours experienced by the Hospital’s staff. It said such hazards generally originate from service users or their relatives and can include violence, harassment, aggression, adult abuse as well as self-injurious behaviour. It said such behaviours have been experienced by its staff previously both in the course of their duties and outside of their work environment. It said that these behaviours can be directed not just towards Hospital staff but also towards service users, their relatives and third parties and that the release of such reports has the potential to place a number of those parties at risk. It said the concerns of its staff members around the possible release of such records predominately relate to the impact it could have on the safe delivery of community-based palliative care services by them, together with concerns that they may be personally targeted outside of the work environment by individuals, the subject of such incident reports.
In light of the above, the Hospital said that it had identified both immediate and medium-term risks to the continuity of its services were the incident reports to be released. More immediately, it indicated that, while its staff would continue to report in line with their professional obligations, in circumstances where a report contains information identifying behavioural hazards, it said that its staff are now likely to refuse to re-enter the community/homecare setting of the service user. The Hospital contrasted this with the current practice whereby its staff may be able to implement risk mitigation measures to alleviate the identified risk and to allow for a continuity of service.
In terms of medium-term risks, the Hospital said it is concerned that the release of the records will result in staff becoming the target of behavioural hazards outside of their work environment. It also said it was concerned that staff will leave the Community Palliative Care Team for alternative employment and that this will prejudice the Hospital in terms of the continuity of its service and in the recruitment of appropriately qualified personnel to undertake its core function and safeguard the delivery of its services into the future.
Turning specifically to section 30(1)(a), the Hospital said that in light of the risks outlined above, it is reasonably expected that staff members may be less frank and may delay the immediate completion and/or submittal of their incident reports where doing so may negatively impact them and or the continuity of service to the service user. It said this will undermine the Hospital’s control function in respect of the investigations, audits and assessments outlined. It said the reports are provided to the Hospital’s Risk Management, Quality & Safety Committee to allow it to undertake investigations into incidents or accidents experienced by its staff, undertake investigations into complaints made relating to the performance of its functions, audit its services and to consider the risks to staff members in the performance of their duties and ensure the proper management and discipline for staff and volunteers.
With regard to section 30(1)(b), the Hospital said the preparation of the incident reports also facilitated the Hospital’s management in fulfilling its functions relating to early assessment of complaints and risks as well as ensuring the health and safety of its staff and service users. It further indicated that the preparation of such reports ensure that all staff are kept up-to-date in relation to any risks associated with service users. It said that in order to ensure these objectives are met it is important that reports are provided in confidence and accurately reflect the experience of the reporting staff member. The Hospital further indicated that following the COVID-19 pandemic there are increased risks for its staff working in community settings and the early reporting of any such risks is essential to mitigate the spread of disease.
The Hospital said that the information contained in the incident reports is essential for it in its supervision of its personnel as well as the management of complaints and risks. In order to achieve this, it said that it is imperative that personnel are able to efficiently report to the Hospital management in an open and frank manner. It said that disclosure of the relevant records could reasonably be expected to result in a reluctance on the part of its staff to appropriately report risk, both actual and perceived, for fear that the content of such a report could result in future adverse behaviours towards them or third parties. It said that any process which has the potential to restrict the efficient, free and confidential reporting of this information will significantly and adversely affect the Hospital in the management of its functions. It said these consequences are significant and ultimately may prejudice the Hospital recruiting and retaining appropriately qualified personnel sufficient to safeguard the continuity of its services
Following receipt of the Hospital’s submissions, the Investigator invited the applicant to make specific submissions with regard to the applicability of sections 30(1)(a) and 30(1)(b). In response, the applicant maintained that her mother was not afforded appropriate care in her final days and she said she is seeking release of the reports so that she can better understand what happened in this period. She said she did not accept the Hospital’s reasoning for refusing the release of the records. She said she could not understand how the release of the records could cause harm and prejudice in relation to tests, examinations or investigations or could have an adverse effect on the performance of the Hospital relating to management. She said there was no behavioural risk at her home, and that she simply asked why a nurse wouldn’t enter her home to attend to her mother.
Analysis
While the Hospital has made arguments with respect to both sections 30(1)(a) and 30(1)(b), I consider section 30(1)(a) to be of the most relevance. As I have outlined above, for that section to apply, the FOI body must hold the view that the release of the record at issue could reasonably be expected to;
i. prejudice the effectiveness of the tests, examinations, investigations, inquiries or audits, or
ii. prejudice the procedures or methods employed for the conduct of such tests etc.
This Office accepts that section 30(1)(a) is not aimed solely at investigations, inspections or evaluations now in progress but may also cover similar exercises conducted in the future. The Hospital has essentially argued that the release of the records could reasonably be expected to prejudice both (i) the effectiveness of the assessments and audits it undertakes following receipt of incident reports pursuant to its obligations under the 2015 Act and in accordance with the related HAS Guidance and its own Policy, Procedure and Guidelines for Risk Management, and (ii) the procedures it employs for the conduct of such assessments and audits. I accept that the assessments and audits referenced are captured by section 30(1)(a).
One of the Hospital’s arguments is that if incident reports are released, staff are likely to be less frank in their reporting of incidents or may decide to delay submission of incident reports or even refuse to submit them, based on concerns that the release of such reports may subject them to further behavioural hazards, including violence, harassment and aggression. It considers that this, in turn, will prejudice the effectiveness of its audits and assessments of such risks. I accept the Hospital’s arguments. I accept that staff submit such reports in the context of facilitating the Hospital’s compliance with all relevant health and safety legislation and procedures and it is reasonable to expect, in my view, that staff will be more reluctant to provide complete and comprehensive reports of incidents if they believe that the reports themselves are likely to be released to the persons involved. I also accept that the effectiveness of the Hospital’s audit and assessment of related risks is likely to be undermined if the full details of an incident are not included in incidents reports. In the circumstances, I am satisfied that release of the four incident reports at issue in this case could reasonably be expected to prejudice the effectiveness of risk audits and assessments that the Hospital undertakes in respect of incident reports.
I am also satisfied that the release of the records at issue could reasonably be expected to prejudice the procedures or methods employed for the conduct of such audits and assessments. The Hospital’s procedures include the submission of complete and comprehensive incident reports to allow for an audit and assessment of associated potential risks to take place and I am satisfied that the release of the records at issue could reasonably be expected to prejudice the submission of such reports to the standard required. In the circumstances, I find that section 30(10(a) applies to the four records at issue.
As I have found section 30(1)(a) to apply to these records it is not necessary for me also to consider the applicability of section 30(1)(b). However, bearing in mind the substantial arguments made by the Hospital, I consider it appropriate to say that I am also satisfied that section 30(1)(b) applies to the four reports. In particular, I consider that release of the records could reasonably be expected to have a significant adverse effect on the Hospital’s ability to appropriately manage its general health and safety and risk responsibilities.
The Public Interest
Section 30(2) provides that section 30(1)(a) does not apply where the FOI body considers that the public interest would, on balance, be better served by granting than by refusing to grant the request.
The applicant argued that it is vital that she can access the information in the incident reports as it is important that she has this information in order be fully informed in making a complaint about the incidents which occurred.
In its submission to this Office, the Hospital said that the public interest favoured the refusal of access to the incident reports as release of the records would have the potential to place its staff members at risk of further adverse behaviours. In addition, the Hospital said that release of the reports would prejudice its ability to recruit and retain staff and would also impact future investigations as well as internal and disciplinary inquiries. For all of these reasons the Hospital said that the public interest favoured the non-disclosure of the information at issue.
Before I consider the applicability of section 30(2), 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, 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.
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, the applicant indicated that she sought access to the reports to assist her in making a complaint concerning the care provided to her mother. While it appears, on its face, that the applicant has essentially expressed 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 more general public interest in individuals being aware of the manner and levels of care afforded to family members to allow them to draw their own conclusions about the standard of care provided, particularly end-of-life care.
Having said that, it seems to me that the release of the records at issue in this case would provide quite limited information on the level or nature of care afforded to the applicant’s mother. While I accept that they would allow the applicant to better understand the actions of the staff with whom she had engagements at her home, they are more focused on the nature of the engagements between the applicant and the staff, as opposed to the level of care afforded to her mother, form a staff health and safety perspective.
On the other hand, there is a significant public interest in ensuring that the Hospital can properly and effectively manage its responsibilities under the relevant health and safety legislation and in ensuring that it can take all reasonable measures to ensure the safety of both its staff and its service users. Having found that the release of the records at issue in this case could reasonably be expected to prejudice both the effectiveness of the Hospital’s risk audits and assessments and the procedures or methods employed for the conduct of such risk audits and assessments, I find that public interest would, on balance, be better served by granting than by refusing to grant access to the records at issue. I find, therefore, that section 30(2) does not serve to disapply section 30(1)(a) in this case.
Having found section 30(1)(a) to apply, it is not necessary for me to consider the applicability of section 37(1) to the four incident reports.
Section 37 – personal information
The Hospital refused access to certain information under section 37(1) of the Act. That section 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).
For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily 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 Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual, (iii) information relating to the employment or employment history of the individual, and (xiv) the views or opinions of another person about the individual.
Certain information is excluded from the definition of personal information, as set out in section 2 of the FOI Act. Paragraph (I) provides that where the individual is or was a staff member of an FOI body, the definition does not include the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of those functions. Where the individual is or was a service provider, paragraph (II) provides that the definition of personal information does not include the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service.
In its submissions to this Office, the Hospital’s arguments concerning the applicability of section 37(1) were focused exclusively on the four incident reports that I have found to be exempt under section 30(1)(a).
The remaining information in the clinical file to which access has been refused comprises information relating to medical personnel and their contact details and information relating to third parties other than the applicant or her mother. Following further correspondence with the Investigator on this case the Hospital said that the individuals in question are not employees of the Hospital as such the exclusion at Paragraph (I) referred to above does not apply. The Investigator therefore further queried whether the applicant’s mother’s G.P. could be considered a service provider within the meaning of Paragraph (II), particularly bearing in mind the operation of the General Medical Services (GMS) Scheme, under which G.P.s are said to be providing a service under a contract of service. In response, the Hospital said that while the G.P. in question may have been providing their services under the GMS Scheme, the Hospital is not party to the exact nature of the engagement.
In correspondence with this Office, the applicant said that she did not understand why information relating to individuals who would be known to her were redacted from the records. She said that all those individuals consented to her knowing their names as they formed part of her late mother’s healthcare team. She said that it was an important part of the complaints process that she receive this information.
The information at issue comprises information relating to both medical professionals who treated the applicant’s mother and a number of other third parties referenced in the records. Having regard to the exclusions at Paragraph (I) and (II) to the definition of personal information as described above, I am satisfied that the redacted information relating to the medical professionals who cared for the applicant’s mother, including the applicant’s mother’s G.P., is not personal information relating to those individuals for the purposes of the FOI Act. I find, therefore, that section 37(1) does not apply to any such information redacted from the records.
On the other hand, I am satisfied that the release of the following information would involve the disclosure of personal information relating to individuals other than the requester or her mother, or would involve the disclosure of joint personal information relating to her mother any other third parties, and that section 37(1) applies to that information:
As section 37(1) of the Act is subject to the other provisions of the section, 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 above information.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise 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 information would be to the benefit of the person to whom the information relates. I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.
In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.
As I have outlined above when addressing the public interest test at section 30(2), the applicant’s reasons for seeking access to the records are, in my view, reflective of a more general public interest in individuals being aware of the manner and levels of care afforded to family members to allow them to draw their own conclusions about the standard of care provided, particularly end-of-life care. It seems to me that the release of the information to which I have found section 37(1) to apply would do little or nothing to serve that public interest in this case.
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. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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. It is also 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. Having carefully considered the matter, 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. I find, therefore, that section 37(5)(a) does not apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Hospital’s decision. I find that it was justified in refusing access, under section 15(1)(a) of the Act, to any further relevant records apart from the 62 records already identified on the ground that no further records exist or can be found. I find that it was justified in refusing access, under section 30(1)(a), to the four incident reports at issue. I find that it was not justified in refusing access, under section 37(1), to information relating the medical professionals who cared for the applicant’s mother and I direct the release of that information. I find that it was justified in refusing access, under section 37(1), to the following 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 applicant 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