Decision
Ms X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-111140-Z8T8P9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-111140-Z8T8P9
Published on
Whether the HSE was justified in refusing access to parts of the applicant’s medical records
OIC-111140-Z8T8P9
In a request to the HSE dated 12 January 2021, the applicant sought access to her medical records as held by Cork University Hospital (CUH) and University Hospital Kerry (UHK). UHK’s decision of 14 January 2021 refused the request under section 15(1)(i) of the FOI Act, saying that it had granted access to the relevant records further to two other FOI requests made by the applicant. CUH’s decision of 27 January 2021 granted access to all records it held concerning the applicant.
The applicant sought an internal review of UHK’s decision on 23 February 2021. She said that it had withheld parts of records 17, 43, 180 and 230 further to its decisions on her earlier FOI requests. She also asked for access to any further records held by UHK. On 19 July 2021, UHK told the applicant that it had previously released her records except for those four excerpts which it had withheld under section 37(1) (third party personal information) of the FOI Act. On 28 July 2021, the applicant applied to this Office for a review of UHK’s decision to withhold parts of her records. She also disputed the accuracy of other details. During the review, the HSE granted access to a further excerpt of record 43 and to the remainder of record 230.
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 and correspondence between this Office, the HSE and the applicant. I have also had regard to the contents of the records at issue and to the provisions of the FOI Act.
The review is confined to whether the HSE’s refusal of access to the remainder of records 17, 43 and 180 as held by UHK was justified under the provisions of the FOI Act.
As the applicant is aware, this review cannot consider the accuracy of the records released to her. However, she can in due course seek a review by this Office of her subsequent application to the HSE under section 9 of the FOI Act for amendment/deletion of records.
Section 13(4) of the FOI Act requires me to disregard any reasons that the applicant has for making her request. Furthermore, my review does not extend to examining, making findings on or taking account of the HSE’s dealings with the applicant in general.
Section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions 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. For this reason, the description I can give of the withheld information is quite limited in this case.
Finally, it is also relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large given that the Act places no constraints on the uses to which the information contained in those records may be put.
Personal information – section 37
The HSE relies on section 37 of the FOI Act in relation to the withheld details. The applicant wishes to obtain her medical records in full and says that she was not made aware of certain matters until she obtained her records. While I acknowledge the importance to the applicant of obtaining full access to her file, this is not relevant to whether information is exempt under section 37 of the FOI Act. Furthermore, as noted above, I cannot have regard to her reasons for making her request.
Section 37(1)
Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information. In particular, section 2 includes a list of 14 non-exhaustive examples of what must be considered to be personal information. I am mindful of the requirements of section 25(3). Having examined all of the withheld information, I am satisfied that it is captured by one or more of the examples of what comprises personal information relating to identifiable individuals other than the applicant.
I accept that the withheld information comprises part of the applicant’s medical records. Insofar as the withheld details may be considered to be joint personal information in such circumstances, section 37(7) provides that, notwithstanding section 37(2)(a) (see below), access to a record shall be refused where access to it 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.
I find that the withheld details are exempt under section 37(1) of the FOI Act. I will now go on to consider sections 37(2) and (5).
Section 37(2) - exceptions to section 37(1)
The applicant says that the records relate to her and that the withheld details should be released to her further to the provisions of section 37(2) of the FOI Act. Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. I note that section 37(2)(a) provides for the grant of access to personal information relating to the requester. However, I am satisfied that no information falls for release further to section 37(2)(a) of the FOI Act. I have already outlined the provisions of section 37(7). I am satisfied that the remaining circumstances set out in section 37(2) do not arise.
Section 37(5)(a) - the public interest
The applicant reiterates that the records relate to her and says that she should be given access to the withheld details further to section 37(5). The HSE did not make any arguments in relation to the public interest. However, this of itself does not determine that the details should be released.
In considering section 37(5), I consider that only section 37(5)(a) is relevant in this case. This section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.
On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] 1 I.R. 729, [2011] IESC 26) (“the Rotunda case”). It is noted that a public interest (“a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law”) should be distinguished from a private interest.
On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.
While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.
Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also 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.
I accept that the disclosure of the withheld information would give the applicant a further, but limited, insight into matters relevant to her medical history. This does not mean that there should be no protection of privacy rights of other individuals, however. Furthermore, I am satisfied that placing the withheld details in the public domain would significantly breach the rights to privacy of identifiable individuals other than the applicant. I should also say that I do not believe it is appropriate for me to direct the release in the public interest of third party personal information, effectively to the world at large, on the basis that the applicant may be dissatisfied with how the HSE interacted with her in the course of her medical treatment.
It seems to me that by releasing the vast majority of the applicant’s medical records, the HSE has sought to strike a balance between the competing interests. Having regard to the nature of the remaining information at issue, I am aware of no public interest factors in favour of the release of the withheld details that, on balance, outweigh the right to privacy of the individuals to whom the information relates. 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 affirm the HSE’s decision on records 17, 43 and 180 as held by UHK 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.
Deirdre McGoldrick
Senior Investigator