Decision
Ms S and Beaumont Hospital
From Office of the Information Commissioner (OIC)
Case number: OIC-150368-R0S0K5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150368-R0S0K5
Published on
29 January 2025
In a request dated 18 April 2024, the applicant sought access to medical certs and social work records held by Beaumont Hospital (the Hospital) relating to her late mother. The applicant later clarified that she was only seeking her mother’s social work notes. In a decision dated 10 May 2024, the Hospital identified one record as relevant to the applicant’s request, the record comprised a social work note and access was refused under sections 35(1)(a) and 37(1) of the FOI Act. On the same day, the applicant sought an internal review of the Hospital’s decision to refuse her request. On 30 May 2024, the Hospital issued its internal review decision. The Hospital affirmed its decision under sections 35(1) and 37(1) of the FOI Act. On 9 July 2024, solicitors on behalf of the applicant applied to this Office for a review of the Hospital’s decision. A detailed application was made, salient points of which will be explored later in the 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 submissions made by the Hospital, the applicant’s comments in her application for review, and correspondence between the applicant and the Hospital. I have also examined the record at issue. I have decided to conclude this review by way of a formal, binding decision.
The scope of this review is confined to whether the Hospital was justified in refusing access to a social work note relating to the applicant’s late mother on the basis that it is exempt from release under sections 35(1) and 37(1) of the FOI Act.
Although I am obliged to give reasons for my decision, section 25(3) 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 record at issue and the material that I can refer to in the analysis is limited.
Secondly, section 18(1) of the FOI Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading, section 18(2) refers. This Office takes the view that neither the definition of a record under section 2 of the Act, nor the provisions of section 18, envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or ‘dissecting’ of records to such an extent.
Finally, the release of records under FOI is generally considered to equate to their release to the world at large, as the FOI Act places no restrictions on the use to which released records may be put.
Section 37(1) Personal Information
Section 37(1) of the FOI Act provides that, subject to the other provisions of this section, an FOI body shall refuse a request if access to the record would involve the disclosure of personal information (including personal information relating to a deceased individual). Section 37(7) provides that 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 of an individual/individuals other than the requester. This is 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. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual, (ii) information related to the financial affairs of the individual and (xiv) the views or opinions of another person about the individual.
The requested record relates to a meeting which took place between the applicant’s late mother and a social worker while she was staying in the Hospital. The record contains details of a discussion around the medical history and financial affairs of the applicant’s mother and the financial information of another third party. The applicant was also in attendance at this meeting. Accordingly, I am satisfied that the information at issue in this case relates to the personal information of the applicant, her mother and another third party. Where the information concerns the applicant and her mother, it is intertwined with personal information related to a third individual. I have taken account of section 18 of the FOI Act as referred to earlier in this decision. I am satisfied that extracting the occasional sentence or word is not practicable. I find that section 37(1) therefore applies to all the information at issue. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37, which I will 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 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 are relevant in this case, nor do I consider any to apply. I find accordingly that section 37(2) does not apply.
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. No argument has been made in relation to section 37(5)(b).
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 sections 37(2)(a) and 37(8), FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In this case, while the applicant did not identify any specific public interest factors in favour of the release of the records at issue that might outweigh on balance, the privacy rights of her late mother and the relevant third party, she indicated in correspondence with the Hospital that she had concerns over the third party in question, who was discussed in the course of the social work meeting. In particular, the applicant raised concerns over the third party having access to her mother’s estate and stated that she was acting on behalf of her late mother to ensure that her estate and belongings remained safe. It is worth mentioning that the applicant has stated that she is the personal representative of her late mother’s estate and will. The applicant has stated that the matters discussed at the meeting related to the welfare of the deceased and were being raised by her and the applicant in a joint effort to resolve an issue relevant to her care by the Hospital. The applicant also stated that the facts of this case suggest that the deceased did not expect her information to be withheld from her daughter as she was present at and participated in the meeting. She further argued that there were no statements or assurances given at the time the information was given by any person present at the meeting regarding information being withheld thereafter.
While 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 public interest in ensuring that vulnerable people are afforded appropriate levels of dignity and care in the management of their health and financial matters.
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 it 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 Hospital did not advance any public interest arguments, however, it has argued that the applicant’s mother provided this information to social worker on the condition that the third party in question is not made aware of it which the Hospital argued is reflected in the record itself. It states that releasing this record would contravene the deceased’s wishes.
While I accept that the release of the record at issue would serve to somewhat enhance transparency around the matters identified above, on the other hand, I must regard its release as being effectively, or at least potentially, to the world at large. Moreover, the information in the record that relates to the applicant or her mother is not solely related to them. Rather it is joint personal information relating to the applicant’s mother and her opinions and concerns over the relevant third party. While I am constrained by section 25(3) of the Act from providing a fuller explanation for my findings, I can say, however, that the information in the record at issue in this case is of an inherently private and sensitive nature. Having regard to the nature of the information at issue and to the fact that the release of the record must be regarded as being effectively, or at least potentially, to the world at large, it seems to me that the public interest in releasing the record should not be at the expense of the privacy rights of the third party individual concerned.
In the circumstances, I do not accept that the public interest in releasing the records outweighs on balance, the privacy rights of the applicant’s late mother or the third party in question. I find, therefore that section 37(5)(a) does not apply.
Section 37(8) and the 2016 Regulations (S.I. 218 of 2016)
The applicant has argued that the Regulations made by the Minister under section 37(8) of the Act are relevant, as she is not only her mother’s next of kin, but also the personal representative acting in the due course of her mother’s estate.
The Regulations provide a potential right of access for both categories above. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016), as amended. For clarity, the Regulations provide that notwithstanding section 37(1), a request may be made for records which involves the disclosure of personal information relating to a deceased individual. Such a request shall, subject to the other provisions of the Act, be granted if the case falls within a case to which Regulation 7 applies. Regulation 7 applies where:
• (a) the requester concerned belongs to one or other of the following classes:
o (i) a personal representative of the individual acting in due course of administration of the individual’s estate or any person acting with the consent of a personal representative so acting…
• (b) 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.
However, it is important to note that neither section 37(8) nor the 2016 Regulations provide a basis for releasing records, or parts of records, which contain personal information relating both to a deceased person and a third party, except where the third party is the requester. Accordingly, I do not need to consider whether any information which comprises joint personal information relating to the deceased and a third party, other than the applicant, falls for release under the Regulations.
As I have explored above the personal information of the applicant and her mother in the record is inextricably linked to that of a third party and accordingly, I am satisfied that the information is exempt from release under section 37(1) of the FOI Act, and that the applicant does not have a right of access to the record at issue under section 37(8) of the FOI Act and the 2016 Regulations as either the next of kin of the deceased or as the personal representative of her late mother’s estate.
As I have found the record to be exempt from release under section 37(1) of the FOI Act, I do not need to consider the applicability of section 35(1)(b) to the record.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Hospital’s decision. I find that the Hospital was justified in refusing access to the record under sections 37(7) and 37(1).
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.
Rachael Lord
Investigator