Decision
Mr X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-157820-W3Y6C8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-157820-W3Y6C8
Published on
Whether the HSE was justified in refusing access, under section 37(1) of the FOI Act, to information on page 30 of the records it released to the applicant on the ground that the redacted information contains personal information of third parties
9 July 2025
In a request received by the HSE on 30 January 2025, the applicant sought access to all medical records relating to his late wife’s care from 2017 to June 2019. On 21 February 2025, the HSE part-granted the request. It redacted some information on pages 28 and 30 of the records under section 37(1) of the FOI Act. On 7 March 2025, the applicant sought an internal review of the HSE’s decision to redacted information contained on page 30. The applicant said he has no difficulty with redacting the third-party name(s) on page 30 but said that there should be no threat to the public interest by releasing the rest of the redacted information. On 24 March 2025, the HSE affirmed its original decision. On 27 March 2025, the applicant applied to this Office for a review of the HSE’s decision. In his application, the applicant stated that he was able to identify a third party from page 29 of the records released, and so it is unclear why third-party information was redacted on the same grounds on page 30.
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 correspondence outlined above and to the submissions made by the HSE and the applicant. I have also had regard to the contents of the record concerned. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the HSE was justified, under section 37(1) of the FOI Act, in refusing access to certain information contained on page 30 of the records on the ground that the information at issue is third-party personal information.
While I am required to give reasons for my decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. In this case, this means that the description I can give of the information at issue and of the reason for my decision are quite limited.
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. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
Section 37(1) of the FOI Act is a mandatory exemption that 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 relating to an individual other than the requester. Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that either (a) would in the ordinary course of events be known only to the individual or members of the family or friends of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential.
Section 2 of the Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester. Under section 37(1), personal information cannot be released unless one of the other relevant provisions of section 37 applies.
In its submissions to this Office, the HSE said that the information redacted on page 30 is personal to individuals other than the applicant and his deceased wife and said there is no evidence to indicate that the third-party individual(s) whose information is in the record have consented to the release of their personal information. While I am constrained by the requirements of section 25(3) in the description I can give of the information redacted on page 30, I am satisfied that the information concerns individuals other than the applicant or his late wife. Accordingly, I find that section 37(1) of the Act applies to the redacted information. However, this 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) provides that section 37(1) does not apply if-
a) subject to subsection (3), the information concerned relates to the requester concerned,
b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester,
c) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or
e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual
No argument has been made that any of the subsections of section 37(2) apply and I am satisfied that they do not.
Section 37(5) provides that access to the personal information of a third-party may 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. The HSE said that the redacted information on page 30 does not directly relate to the care and treatment offered to the applicant’s late wife. It said that the release of the redacted information would not be of benefit to the individual(s) to whom it relates. Having regard to the content of the redacted information I find that section 37(5)(b) does not apply in this case.
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, the release of records under the FOI Act must be regarded, in effect, as release to the world at large. 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 its submissions to this Office, the HSE said the following factors for and against release were considered:
Public interest factors in favour of release:
• the requester exercising a right of access under the FOI Act
• ensuring openness, transparency, and accountability
• the public interest in knowing what information is held by a public body
Public interest factors against release:
• protecting the right to privacy of members of the public
• the entitlement of individuals to be assured of confidentiality by a public body in relation to their personal information held about them
• a member of the public being able to communicate in confidence with a health service in relation to matters that are personal and sensitive and allay concerns in relation to matters without fear of disclosure and identification.
The HSE said that it is its view that, on balance, the factors against release outweigh those in favour of release as the right to privacy of an individual is a strong right with a constitutional dimension. The HSE said it has a duty to maintain the confidentiality of personal information at all times.
In his submissions to this Office, the applicant referred to Supreme Court rulings the “eNet Case” and in University College Cork (UCC) vs The Information Commissioner 25 September 2020 - Court No 100/2019’. He said the Supreme Court held that while public bodies are entitled to refuse to disclose commercially sensitive or confidential information pursuant to an FOI request, the decision must be adequately justified. The applicant said that public bodies are required to carefully consider whether the public interest justifies disclosure of documents pursuant to an FOI request. He said he is trying to establish whether there was breach of Duty of Care in the case of his late wife and said he believes that the public interest will be better served if there is a full disclosure of all of the facts.
Having considered the matter, and bearing in mind the strong public interest in protecting the right to privacy, I do not accept that there is any public interest in releasing the information at issue that outweighs the privacy rights of the relevant third parties. While I acknowledge there is a public interest in transparency around the care provided to patients by the HSE, I am satisfied that release of the redacted information at issue in this case will offer little or no additional insight into the care provided to the applicant’s late wife. I note that the HSE said all records were released to the applicant except for a small amount of third party personal information contained on pages 28 and 30 of the records. As such, in my view the HSE has endeavoured to release as much information as possible to the applicant while still protecting the rights of third parties whose information is contained in the records. Having regard to the strong protection afforded to privacy rights under the Act, I am not satisfied that there is any sufficiently specific, cogent and fact-based reason for finding that the public interest in granting the applicant access to the information redacted by the HSE outweighs the right to privacy of the individuals to whom the information relates. Accordingly, I find that section 37(5) does not serve to disapply section 37(1) in respect of the information at issue.
In summary, I find that the HSE was justified in withholding, under section 37(1) of the FOI Act, the information it redacted from the record at issue.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision to refuse access to the information it redacted on page 30 of the records under section 37(1) of the FOI 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.
Richard Crowley
Investigator