Decision
Mr X and Defence Forces
From Office of the Information Commissioner (OIC)
Case number: OIC-152410-C9T8W8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-152410-C9T8W8
Published on
Whether the Defence Forces was justified in refusing access, under section 15(1)(a) of the Act, to further medical records relating to the applicant other than those released on the ground that no further relevant records exist or can be found and whether it was justified in redacting, under section 37(1), certain third-party personal information from the records released
20 December 2024
In a request dated 2 April 2024, the applicant sought access to all his medical records during his time as a member of the Defence Forces. In a decision dated 14 May 2024, the Defence Forces released the applicant’s medical file, with some third party personal information redacted under section 37(1) of the FOI Act.
On 6 June 2024, the applicant sought an internal review of the decision. He said the omitted information is a vital part of his medical history. He added that he did not receive records of his confinements and treatment received in St Bricin’s Hospital and St Dympna’s in South Dublin. He said he required all records concerning a specified treatment he received in St Dympna’s.
On 20 September 2024, the Defence Forces affirmed its original decision to redact certain information from the records released. It also refused access to records concerning treatment received in St Bricin’s Hospital and St Dympna’s under section 15(1)(a) on the ground that no further records could be found. It suggested he may wish to contact the HSE who may be in a position to assist in the search for his requested medical records. It is my understanding that the applicant has since made a separate FOI request to the HSE for his personal medical records. On 30 September 2024, the applicant applied to this Office for a review of the decision of the Defence Forces.
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 applicant and the Defence Forces. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned with whether the Defence Forces was justified in refusing access, under section 15(1)(a) of the Act, to further medical records relating to the applicant on the ground that not further relevant records can be found and in redacting certain information, under section 37(1), from the records released.
Section 15(1)(a) of the FOI Act provides that an FOI body may refuse to grant a request when the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision is justified. This means that the Commissioner must have regard to the evidence available to the decision maker in arriving at their decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
In its submissions to this Office, the Defence Forces said that when a member of the Forces retires, their medical file is archived with a private records storage company and that no records are ever destroyed. It said that when it received the request, the Central Medical Unit (CMU) ordered the applicant’s medical file from the storage company. It said the file was copied and then released to the applicant with some redactions under section 37(1). It said that when the applicant requested an internal review, a further search was conducted by the CMU and a named Medical Officer, but no further records were found. It said it has never known medical records to be destroyed within he CMU and that no destruction certificate has ever issued to say that medical records have been destroyed purposely.
In addressing the applicant’s argument that he did not receive all records of his treatment at St Bricin’s Hospital and St Dympna’s, it said the records released show that he received the specified treatment he referred to in another named hospital, not St Dympna’s. It said it provided the applicant with records relating to the treatment he specified but those records were from the named hospital and not St Dympna’s as the applicant suggested. It said that it suggested he may wish to contact the HSE to enquire about the possible existence of other records as both St Dympna’s and the other named hospital are HSE hospitals. It said its CMU is located within St Bricin’s Hospital and so all medical records relating to treatment in that Hospital are contained in the medical file released to the applicant.
The Investigating Officer provided the applicant with the details of the submission made by the Defence Forces and offered him an opportunity to make further submissions or comments on his case. The applicant responded by stating that he was certain that he was sent as a patient on more than one occasion from St Bricin’s to St Dympna’s Unit in Dundrum Mental Hospital for a specific treatment. He said he was aware that medical notes regarding his treatment in St Dympna’s were sent back to medical staff in St. Bricin’s. He also suggested that records from St Bricin’s referring him to St Dympna’s Unit should exist.
My Analysis
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can and do arise where records are lost or simply cannot be found. What section 15(1)(a) requires is that the FOI body takes all reasonable steps to locate relevant records. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records. The question I must consider is whether the Defence Forces has taken all reasonable steps to ascertain the whereabouts of the records sought in this case.
Having regard to the extent of the records already released, to the details of the submissions made by the Defence Forces of the records management practices it has in place in respect of medical records generally, and to the steps taken to process the applicant’s request, I am satisfied that it has. While the applicant has contended that other relevant records should exist, he provided no supporting information to suggest that other specific searches should have been undertaken. In the absence of such evidence, I am satisfied that the Defence Forces has taken all reasonable steps to ascertain the whereabouts of the records sought and that it was justified in refusing access, under section 15(1)(a) of the Act, to any further relevant records.
In his application for internal review, the applicant stated that full pages may have been omitted from his medical file. The Defence Forces confirmed that the only redactions made to the released copy of the applicant’s medical file were parts of pages that were all released to him. It said no document was fully redacted or withheld.
During the course of the review, the Defence Forces re-released eleven pages of the applicant’s medical file. These pages initially contained redactions, but the Defence Forces subsequently decided that these pages could be released in full. The Defence Forces informed this Office that it was uncertain whether the applicant had received these pages of his file with or without the redactions, and so it decided to re-release them without the redactions to be sure.
Again, the applicant was given the opportunity to comment further after receiving an update on the Defence Forces’ submissions on its use of the section 37(1) exemption. In his response letter, he did not raise any further points relating to this section.
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 third party personal information. ‘Personal information’ is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential.
The Defence Forces redacted the names of staff members linked to an incident involving the applicant and some medical information of staff members of the Forces which were in the applicant’s medical file. I am satisfied that the release of the information would involve the disclosure of personal information relating to identifiable individuals other than the applicant. Accordingly, I find that section 37(1) of the Act applies to the information at issue.
Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case. Section 37(5) provides that a request that would fall to be refused under subsection (1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case and I find accordingly.
On the matter of the applicability of section 37(5)(a), 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 FOI Act places no constraints on the uses to which a record released under FOI can be put. 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 information effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.
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. Moreover, unlike other public interest tests provided for in the FOI Act, there is 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.
Having considered the information at issue, I can think of no public interest in granting access to the information that would outweigh the privacy rights of the individuals concerned, nor has the applicant identified any such public interest. Accordingly, I am satisfied that section 37(5)(a) does not apply.
In conclusion, therefore, I am satisfied that the Defence Forces was justified in redacting, under section 37(1) of the Act, certain third party personal information contained in the records at issue.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Defence Forces’ decision. I find that the Defence Forces was justified in refusing access, under section 15(1)(a) of the Act, to further medical records relating to the applicant on the ground that no further relevant records exist or can be found. I also find that the Defence Forces was justified in redacting, under section 37(1), certain third party personal information from the records released.
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.
Stephen Rafferty
Senior Investigator