Decision
Mr M and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-151462-N5T0S9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-151462-N5T0S9
Published on
Whether the HSE was justified in refusing access, under section 37(1) of the FOI Act, to certain information redacted from the applicant’s mental health records
1 April 2025
In a request received by the HSE on 16 May 2024, the applicant sought access to a copy of his psychiatric evaluation from 4 February 2024. In its decision of 24 June 2024, the HSE identified 38 pages of records as coming within the scope of the request and part-granted access the request. It refused access to certain information within a number of the records under section 37(1) of the FOI Act. It said that the withheld information comprised personal information of third parties and that it did not have the consent of the parties to release their information. The applicant sought an internal review of that decision. On 9 August 2024 the HSE affirmed its decision. On 20 August 2024, 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. In carrying out my review, I have had regard to the submissions made by the HSE and the applicant’s comments in his application for review. I have also examined the records at issue. I have decided to conclude the review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by the HSE in the Schedule of Records it issued to the applicant with its internal review decision.
The HSE originally withheld information from pages 2, 13 to 24, 27, 36 and 37 on the basis of section 37(1) of the FOI Act. During the course of the review, it said that it had re-examined the records and had decided to release further information. It said it intended to release all of the information withheld from page 37 and that it also intended to release certain information withheld from pages 15, 16, 17, 20, 22 and 27. The effect of this is that the HSE has identified no information for redaction from pages 16, 17, 22, 27 or 37 and I will give no further consideration to those pages or to the additional information in pages 15 and 20 it has decided to release. I expect the HSE to release the relevant information if it has not done so already.
This review is therefore concerned solely with whether the HSE was justified in refusing access to the remaining information withheld from pages 2, 13, 14, 15, 18, 19, 20, 21, 23, 24, and 36 under section 37(1) of the FOI Act.
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. 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). Essentially, this means that if personal information relating to the requester is inextricably linked to personal information relating to other parties, then section 37(1) applies to all of the information, regardless of the fact that it also relates to the requester.
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.
While I am required, under section 25(3) of the FOI Act to take all reasonable precautions in the course of a review to prevent the disclosure of exempt information, I believe I am not in breach of that provision by providing the following analysis of the information at issue in this case. I am satisfied that the information redacted from pages 2, 13, 14, 15, 24 and 36 can reasonably be described as joint personal information relating to the applicant and his wife, as can some of the information redacted from page 20. The information redacted from pages 18 and 19 comprises medical and personal history information relating to other members of the applicant’s family, including his deceased father, and comprises a mix of personal information relating to those individuals and some joint personal information. The information redacted from page 21 comprises joint personal information relating to the applicant and a third party. The information redacted from page 23 relates to the applicant and his son.
In his correspondence with this Office, the applicant said he believed the majority of the information at issue to be information he had given to the HSE and he saw no reason why the information should be withheld. He further said that he particularly wanted access to the information withheld from page 21 as he believes that false information was provided.
It is important to note that the fact that a requester may be aware of the nature of withheld information or may have even provided some or all of the information to the FOI body does not mean that it cannot be regarded as personal information relating to a third party for the purposes of the FOI Act.
In its submissions to this Office, the HSE said the withheld information comprises personal information relating to third parties known to the applicant. It said it accepts that most of the information that is being withheld was provided by the applicant but argued that there is a wider public interest in having a confidential medical service where the expectation is that third party information will not be shared without obtaining explicit consent from the third parties to whom the information relates. It said it considers that the redacted records contain information of a private and personal nature.
Having carefully examined the information at issue, I am satisfied that all of it can properly be described a personal information and that section 37(1) applies. However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section, specifically subsections (2), (5), and (8). Accordingly, 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 information at issue
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.
In respect of subsection (a), I am satisfied that the final paragraph that has been redacted from page 23 comprises information relating solely to the applicant and that this serves to disapply section 37(1) in respect of that paragraph.
Apart from that, no argument has been made that any of the circumstances outlined above at subsections (b) to (e) are relevant in this case, nor do I consider any to apply. I find accordingly that section 37(2) does not apply to the remaining information.
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 third parties to whom it relates. No argument has been made that the release of the information at issue in this case would benefit the third parties to whom the information relates. I am satisfied 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 sections 37(2)(a) and 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 inThe 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.
While the applicant did not make any specific public interest arguments in favour of the release of the information, as I have outlined above, he specifically referred to the information redacted from page 21 and suggested that false information may have been provided to the HSE.
In its submissions, the HSE said it considered the following factors in favour of release:
• the public interest in members of the public knowing that information held by public bodies about them, or those they represent, is accurate,
• the public interest in members of the public exercising their rights under the FOI Act, and
• the public interest in FOI bodies being open and transparent about how services are conducted.
It said it considered the following factors against release:
• the public interest in protecting the right to privacy of members of the public,
• the public interest in members of the public being able to communicate in confidence with public bodies and without fear of disclosure in relation to personal or sensitive matters, and
• the public interest in safeguarding the flow of information to public bodies
The HSE added that while it accepted that most of the withheld information was provided by the applicant, there is a wider public interest in having a confidential medical service where the expectation is that third party information will not be shared without obtaining explicit consent from the third parties to whom the information relates. It said it considered the information to be of a private and personal nature and concluded that the public interest in granting access to that information does not, on balance, outweigh the right to privacy of the relevant third parties. It said it has an ongoing responsibility to protect the confidentiality of information which it receives from third parties.
On the matter of the information redacted from page 21, the HSE said that while it understands that the applicant has raised concerns regarding the accuracy of the information which was provided to the HSE clinician by the particular third party, it said it was worth considering the Medical Council’s Guide to Professional Conduct and Ethics for Registered Medical Practitioners which sets out the principles of professional practice and conduct that all doctors registered with the Medical Council are expected to follow and adhere to, for the benefit of the patients they care for, themselves and their colleagues. It said that, in this context, all medical practitioners have a duty to maintain accurate and up-to-date patient records and have a legal and professional duty to ensure the accuracy and completeness of any records which they create at the time of their care management and treatment. It said there is no evidence to suggest the information which is documented on page 21 is inaccurate.
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).
In my view, the information redacted from pages 2, 13, 14, 20 and 24 is not of a particularly sensitive nature and I fully accept that the information itself was provided to the HSE by the applicant. Indeed, it seems to me to be of a type of information that the HSE could reasonably have provided to the applicant outside of the FOI regime having regard to the nature of the information and the fact that the applicant provided it in respect of his medical care, although I must also acknowledge that the applicant is likely already aware of the relevant content. Nevertheless, the information is, indeed, third party personal information and as such, there must be a sufficiently specific, cogent and fact-based reason to find that the public interest in its release outweighs, on balance, the privacy rights of the third parties concerned.
I consider that the release of the information would serve a general public interest in individuals knowing that the information they provide in respect of their medical care is recorded accurately. On the other hand, the fact remains that I must regard the release of the information as being effectively, or at least potentially, to the world at large. While the information may not be particularly sensitive, it remains personal information. Having considered the matter, and bearing in mind the strong public interest in protecting the right to privacy, I do not accept that the public interest in releasing the information in pages 2, 13, 14, 20 and 24 outweighs, on balance, the privacy rights of the relevant third parties. 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.
On the matter of the information at issue in pages 15, 18, 19, and 23, I am satisfied that this information is of a more inherently private nature. Again, bearing in mind the strong public interest in protecting the right to privacy, and that fact that I must regard the release of the information as being potentially to the world at large, I do not accept that the public interest in releasing the information outweighs, on balance, the privacy rights of the relevant third parties.
On the matter of the information at issue in page 21, I fully accept that there is a public interest in individuals being made aware of information that the HSE holds on them and in ensuring its accuracy, particularly where such information may be of relevance to the assessment of their mental health, as appears to be the case here. On the other hand, there is also a public interest in ensuring that the HSE can continue to receive such information so that it can have regard to relevant information in such assessments. I am satisfied that the release of such information, potentially to the world at large, would have a significant negative impact on the HSE’s ability to continue to receive such information. The information at issue is of an inherently sensitive nature in respect of both the applicant and the relevant third party. On balance, I am satisfied that the public interest in releasing the information does not outweigh the right to privacy of the third party individual to whom the information relates.
Accordingly, I find that section 37(5) does not serve to disapply section 37(1) in respect of any of the information at issue.
Certain information redacted from page 18 and the information redacted from page 19 relates to the applicant’s deceased father. The information redacted from page 23 concerns the applicant and his son.
Section 37(8) provides that notwithstanding subsection (1), the relevant Minister may provide by regulations for the grant of an FOI request where;
(a) the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual, or
(b) 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 are the Freedom of Information Act 2014 (section 37(8)) Regulations 2016 (the 2016 Regulations).
Among other things, the 2016 Regulations provide that, notwithstanding section 37(1);
• a request may be made for records which involves the disclosure of personal information relating to a minor and shall, subject to the other provisions of the FOI Act 2014, be granted, where the requester is a parent or guardian of the individual to whom the record concerned relates and that individual has not, on the date of the request, attained full age, and
• a request may be made for records which involves the disclosure of personal information relating to a deceased individual, and shall, subject to the other provisions of the FOI Act 2014, be granted where the requester is the spouse or the next of kin of the individual and the FOI body considers, 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.
Information relating to the applicant’s son
The 2016 Regulations provide that the above mentioned right of access to the records of a minor shall apply where the FOI body considers that access to the record would, having regard to all the circumstances, be in the minor’s best interests.
The Minister has published guidance in relation to access to records by parents under section 37(8) (Central Policy Unit Notice 25, available on www.foi.gov.ie). Section 48(3) of the FOI Act provides that FOI bodies must have regard to such guidance when performing their functions under the FOI Act.
The Guidance lists the following as factors to be considered:
• whether the minor would consent to the release of the material,
• whether release of the material would damage the minor in some way, and
• whether the records are held in the minor's own right?
The guidance also suggests that, where appropriate, there should be a consultation with the minor concerned to establish his or her views on the release of his or her personal information to a parent. In the particular circumstances of this case, due to the age of the child, it is not possible to consult with the child nor to establish whether the minor would consent to release of the material. The records in question are not held in the minor’s own right.
The HSE said the information redacted from page 23 is of a particularly sensitive nature and it considers that the provision of the information to the applicant carries the potential to negatively impact the best interests of the young child. It said, in particular, that given that the release of information under FOI is generally considered to constitute release to the world at large, it considers that the release of the information relating to the young child would result in a significant risk of a breach of the child’s right to privacy as he gets older.
The issue I must consider is whether the HSE was justified in finding that, having regard to all the circumstances, release of the record would not be in the best interests of the applicant’s son. It is important to note that by making the relevant Regulations, the Minister has determined that the parent of an individual who belongs to the class of individual described in Regulation 5(b) of the 2016 Regulations shall have a right of access to personal information relating to that individual, subject to release being in the individual’s best interests having regard to all the circumstances. As such, while it is relevant to consider the release of personal information as potential release to the world at large when considering whether, pursuant to section 37(5)(a), the public interest in granting a request outweighs the right to privacy of the individual to whom the information relates, it is not, in my view, appropriate to do so when considering whether a right of access exists pursuant to the 2016 Regulations. The Regulations require the request to be considered based specifically on the identity of the requester in such cases. The question that must be considered is whether release would be in the best interests of the applicant’s son.
While the Supreme Court held in the case ofMcK v. The Information Commissioner [2006] IESC 2 that a parent is entitled to a rebuttable presumption that access to his or her child's medical information is in the best interests of the child, the contents of the records is a relevant factor. While the applicant is entitled to the presumption that he will act in the best interests of the child, it is my view, based on the information at issue and the submissions by the HSE, that the release of the information to the applicant carries the potential to negatively impact the best interests of the child. I also accept, based on the information, that the release of the information could be potentially damaging to the minor and/or the future relationship between the minor and the applicant. I find, therefore, that no right of access exists to the information redacted from page 23 under the 2016 Regulations.
Information relating to the applicant’s deceased father
In relation to the personal information in pages 18 and 19 which relates to the applicant’s deceased father, the applicant said this is information he gave in his evaluation and sees no reason why the information cannot be released back to him.
The HSE said it considered the 2016 Regulations and is satisfied that the applicant is eligible to apply for access to records relating to his deceased father as next of kin. It said the right to privacy extends to the personal information of his deceased father and the law only allows access in certain cases. It said that the information exempted in relation to the applicant’s deceased father contains highly sensitive personal information and, while it understands that the applicant is aware of this information, given that the release of information under FOI is generally considered to constitute release to the world at large, it considers that the release of the information relating to the applicant’s father would result in a significant risk of a breach of the deceased’s right to privacy.
It is important to note that the fact that the applicant is the next of kin of the deceased does not mean that he is automatically entitled to access the record. The issue I must consider is whether, 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 applicant’s request. As the 2016 Regulations require that regard must be had to "all the circumstances", relevant circumstances cannot be excluded solely on the basis that they are not public interest factors. The Guidance referenced above provides that it is a matter for the decision-maker to make such enquiries and engage in such consultation as is necessary to allow him or her to decide if the public interest would be better served by granting than by refusing the request. It suggests that certain factors should be taken into consideration when deciding if release is appropriate to the spouse or next of kin of the deceased, including:
• the confidentiality of personal information as set out in section 37(1);
• whether the deceased would have consented to the release of the records to the requester when living;
• whether the person had outlined arrangements in his or her will or other instrument in writing consenting to the release of personal records;
• whether the release would damage the good name and character of the deceased;
• the nature of the relationship of the requester to the deceased and the circumstances of their relationship before the deceased's death;
• the nature of the records to be released;
• whether the requester can get the information they want without accessing the records of the deceased; and
• any other relevant circumstances that the requester may set out.
Furthermore, in considering the nature and confidentiality of records to be released, the Guidance states that if the record is inherently private and of a very sensitive nature, then there must be compelling reasons for its release. In relation to medical records in particular, it states that due regard should be had to the confidentiality of medical records in accordance with the relevant Irish Medical Council guidance - currently the Guide to Professional Conduct and Ethics for Registered Medical Practitioners - 9th edition published in 2024 (‘the Medical Council Guide’). The Medical Council Guide states that patient information remains confidential even after death and suggests that, if unclear whether the patient consented to disclosure of information after their death, it should be considered how disclosure of the information might benefit or cause distress to the deceased’s family or carers, along with the effect of disclosure on the reputation of the deceased and the purpose of the disclosure.
It is important to note that the information contained in the records relating to the applicant’s deceased father is information that the applicant himself provided to the HSE in the context of his own medical care and treatment. Indeed, the HSE has acknowledged that that the applicant is aware of the information. However, its view is that that the release of the information would result in a significant risk of a breach of the deceased’s right to privacy in circumstances where the release of information under FOI is generally considered to constitute release to the world at large.
As I have outlined above, it is not, in my view, appropriate to consider the release of personal information as potential release to the world at large when considering whether a right of access exists pursuant to the 2016 Regulations given that the Regulations require the request to be considered based specifically on the identity of the requester. In circumstances where the applicant himself provided the information to the HSE, I do not accept that the release of that information back to the applicant would involve a breach of a duty of confidence or that the deceased would have objected to the release of information to the applicant that was already known to him. Having carefully considered the matter, I am not satisfied that the HSE was justified in finding that, the public interest would, on balance, be better served by refusing to grant access to the information relating to the applicant’s deceased father.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE’s decision. I find that the HSE was justified in refusing access to information redacted from the records at issue under section 37(1) of the FOI Act, apart from the following information
• the final paragraph that has been redacted from page 23,
• the first line redacted form page 18, and
• the information redacted from page 19.
I direct the release of that 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 requester 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