Decision
Ms X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-142745-X2Y5Z2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-142745-X2Y5Z2
Published on
Whether the HSE was justified in refusing access to the applicant’s late father’s medical records
13 May 2024
The HSE treated the applicant’s emails to a particular GP practice, dated 25 and 26 July 2023, as comprising an FOI request for records held by that practice regarding aspects of her late father’s medical care and treatment. The HSE’s decision of 8 September 2023 refused the request under section 37(1) of the FOI Act (personal information), and also on the basis that the applicant was not entitled to access to the records further to Regulations made under section 37(8) of the FOI Act.
The applicant sought an internal review on 8 September 2023. The HSE’s internal review decision of 29 September 2023 affirmed its refusal of the request.
On 29 September 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 and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, correspondence between this Office, the HSE and the applicant, to the contents of the records at issue, and to the provisions of the FOI Act.
The scope of the review is confined to whether the HSE’s refusal of the applicant’s request is justified under the provisions of the FOI Act.
It is important to note that section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the course of a review 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. This provision also has implications for the extent to which I can give reasons for my decision in this case.
Section 37 – personal information
Section 37(1)
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).
Section 2 of the FOI Act defines the term “personal information” as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The Act also details 14 specific categories of information which is personal without prejudice to the generality of the foregoing definition, including, but not limited to (i) information relating to the medical history of the individual.
The applicant does not appear to dispute the HSE’s position that her father’s medical records comprise his personal information. In any event, and bearing in mind the requirements of section 25(3), I am satisfied that all of the records contain information about the applicant’s father that meets the definitions of personal information and which, in any event, is captured by category (i) of personal information.
I find that section 37(1) applies. However, section 37(1) is subject to the other provisions of section 37, which I examine below.
Section 37(2)
Section 37(2) provides that section 37(1) does not apply if;
a. the information concerned relates to the requester concerned,
b. the individual to whom the information relates consents, in writing or 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 the provisions of section 37(2) apply and I am satisfied that they do not apply in this case. In particular, insofar as section 37(2)(a) may be argued to be relevant on the basis that the medical records at issue may also contain references to the applicant, the provisions of section 37(7) are relevant. 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).
I find, therefore, that none of the provisions of section 37(2) serve to dis-apply section 37(1) in this case.
Section 37(5)
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. Given the circumstances of this case, 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) 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.
The applicant says that she needs access to the records to better understand the medical care and treatment given to her father by the GP practice. She asks that her request be granted on compassionate grounds. She says also that she attended many of her father’s GP appointments, and that the medical professionals spoke openly with her about her father at each visit. The majority of the applicant’s remaining arguments in support of the release of the records concern a third party’s care of her father, and other matters relating to that third party. The third party is not a public servant or a contractor. In addition, the applicant contends that her father wrote a letter instructing the GP practice not to give her access to his medical files or information, and that such a letter must have been written under duress or by someone else. She says that she would like to see a copy of the letter and the signature on it. She has also provided me with copies of certain legal correspondence.
In essence, it is the HSE’s position that, while there is a public interest in openness and transparency about its delivery of services, there is a very strong public interest in protecting privacy rights. It contends that the public interest does not weigh in favour of release of the records at issue.
Analysis
In relation to the letter that the applicant alleges is on file denying her access to her father’s medical information, as noted earlier I am bound by the requirements of section 25(3) regarding the contents of the records at issue. However, in relation to this matter and the applicant’s various other contentions about a third party, it is important to note that, speaking generally, the FOI Act is concerned with promoting transparency regarding the actions of FOI bodies and/or contractors to FOI bodies, rather than regarding the actions of private individuals. As the applicant is already aware, this Office has no role in examining the actions of any party, and I cannot take her views on such matters into account in this review. Furthermore, the FOI Act does not provide for access to be granted to records on compassionate grounds.
However, I note that the applicant also says she wants to understand more about the medical/GP care given to her father. It seems to me that such an argument is reflective of a general public interest in ensuring that persons are afforded appropriate levels of care and treatment by the HSE.
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).
I accept that the release of the records at issue would, to a reasonable extent, enhance transparency around the levels of care and treatment afforded to the applicant’s father by the HSE Primary Care service. However, it remains the case that the records concerned are of a very sensitive and inherently private nature. I must also regard their release as being effectively, or at least potentially, to the world at large. In the circumstances, I do not accept that the public interest in releasing the records outweighs, on balance, the privacy rights of the deceased. I find, therefore, that section 37(5)(a) does not apply.
Section 37(8) and the 2016 Regulations
Section 37(8) of the FOI Act provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform (the Minister) may provide by regulations for the grant of an FOI request where the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations.
The relevant Regulations in this case are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. No. 218 of 2016), as amended, (the Regulations). Among other things, the Regulations provide that, notwithstanding section 37(1), a request for records which involves the disclosure of personal information of a deceased individual shall be granted where the requester is the spouse or the next of kin of the individual and in the opinion of the head, 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.
Under section 48(1) of the FOI Act, the Minister may draw up and publish guidelines for the effective and efficient operation of the Act to assist bodies in the performance of their functions under the Act. Section 48(3) of the FOI Act provides that FOI bodies "shall have regard to" such guidelines when performing their functions under the FOI Act. The Minister has produced Guidance relating to section 37(8) and the Regulations.
The Minister’s Guidance notes that the 2016 Regulations require that regard must be had to "all the circumstances" when a decision maker is considering whether the public interest would, on balance, be better served by granting the request of a spouse or next of kin. It provides that in reaching a decision on an individual case, the decision maker should therefore take the following factors into consideration:
whether the deceased would have consented to the release of the records to the requester when living,
the nature of the relationship of the requester to the deceased and the circumstances of their relationship before the deceased's death,
The parties’ arguments
I have already summarised the applicant’s arguments and contentions.
The HSE says that the records are of a sensitive and intrinsically private nature. It says also that the Medical Council guidelines are that medical information remains confidential after death. In addition, it believes it is unlikely that the applicant’s father would have agreed to the release of his records.
Analysis
The Regulations do not provide for the release of records solely because the applicant is her father’s next of kin. Neither do they provide for the release of records on compassionate grounds.
I note the various circumstances put forward by the applicant as relevant in this case, including that she attended various appointments with her father, that medical professionals spoke openly with her about her father in those visits, and that she cannot gain a better understanding of the relevant practice’s care and treatment of her father without access to the requested records. As noted earlier, she also contends that any letter there may be on file from her father, instructing the GP practice not to give her access to his medical files or information, must have been written under duress or by someone other than her father.
On the other hand, the applicant does not appear to dispute the sensitive nature of her father’s personal information generally. In any event, I accept that the personal information in the records remains very sensitive, and inherently private and confidential. Furthermore, having regard to the records and the HSE’s submissions, which I cannot detail here due to the requirements of section 25(3), I accept the HSE’s position that consent would not have been forthcoming from the applicant’s father when living.
Having carefully considered all of the circumstances in this case, I am satisfied that the public interest would, on balance, be better served by refusing the request. I find that the applicant is not entitled to access to the records at issue further to the Regulations made under section 37(8) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision on the basis that section 37(1) of the FOI Act applies to the requested 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.
Anne Lyons, investigator