Decision
Ms. Y and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-147723-T6Y6D6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-147723-T6Y6D6
Published on
Whether the HSE was justified in redacting, under section 37(1) of the FOI Act, certain information from the medical records of the applicant’s deceased husband and in refusing access, under section 15(1)(a) of the Act, to any further relevant records apart from those released on the ground that no further relevant records exist or can be found
8 April 2025
In a request dated 1 March 2023, the applicant sought access to a copy of her late husband’s complete medical file held by a named GP practice. On 12 February 2024, she sought an internal review on the basis that the HSE did not issue a decision on her request. On 1 March 2024, the HSE refused the request under section 37 of the Act. On 14 March 2024, the applicant applied to this Office for a review of the HSE’s decision.
During the course of the review, the HSE reconsidered its decision and released the majority of the 119 records it identified as falling within the scope of the request. Records 26, 27, 28, 29, 31, 32, 33, 87, 94 and 100 were released in part, with redactions under section 37. The remaining records were released in full. Subsequently, the HSE explained that the information redacted from records 26, 27, 28, 29, 31, 32, and 33 comprised a pharmacy dispensing email address that was redacted in error. Accordingly, I will give no further consideration to those records.
In correspondence with this Office, the applicant said she was not satisfied that any of the records should have been redacted or withheld. She also said she was not satisfied that she had received all of the records sought. She suggested that records relating to a visit to a named hospital by her husband in September 2019 should be on file. In response, the HSE said the GP practice was satisfied that all records were released. This is, in essence, a refusal to grant access to any further relevant records under section 15(1)(a) of the Act on the ground that the records sought do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.
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 between the HSE and the applicant and to the correspondence between this Office and both parties on the matter, I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned with whether the HSE was justified in redacting, under section 37 of the Act, certain information from records 87, 94 and 100, and in refusing access, under sections 15(1)(a), to any further relevant records.
Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in such cases is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at their decision. I must also assess the adequacy of the searches conducted by the FOI body in looking for relevant records. 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 submission to this Office, the HSE said that upon receipt of the applicant’s comments regarding a visit by the deceased to a named hospital, it contacted the GP Practice Manger and the current GP who confirmed all records in possession of the Practice were provided to it for release. It said searches were conducted both manually and electronically on two occasions and relevant GP practice staff were consulted and no further records were found.
The HSE added that a hospital attendance may not necessarily mean a GP record exists or that documentation was received from the hospital attended. It suggested that the applicant may wish to make a fresh request to the hospital and provided contact details for same. The applicant was duly informed of HSE’s position on the matter and of the advice regarding the making a fresh request to the hospital. She was also invited to make submissions to this Office on the HSE’s reliance on section 15(1)(a) of the Act. No such submissions have been received to date.
For an FOI body to rely on section 15(1)(a) of the FOI Act to refuse access to records, it does not have to be certain as to the existence or otherwise of relevant records. What section 15(1)(a) requires is that the FOI body takes all reasonable steps to locate relevant records. As such, the question I must consider in this case is whether the HSE has taken all reasonable steps to ascertain the whereabouts of relevant records. From the submissions received from the HSE, and in the absence of evidence to suggest that further specific searches might be warranted, I am satisfied that it has in this case. Accordingly, I find that the HSE was justified in refusing access, under section 15(1)(a) of the Act, to any further relevant records.
Section 37 – Personal Information
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. This does not apply where the information involved relates to the applicant (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 applicant, also involve the disclosure of personal information relating to an individual or individuals other than the applicant. This is commonly known as joint personal information.
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 details 14 specific categories of information that is personal without prejudice to the generality of the definitions provided for in (a) and (b) above, including information relating to the educational, medical, psychiatric or psychological history of the individual.
The information redacted from records 87, 94 and 100 comprises medical information relating to individuals other than the applicant or her late husband. I am satisfied that the information is either personal information relating to those individuals or joint personal information relating to the applicant’s husband and those individuals. In her communications with this Office, the applicant said she was married to her husband for 45 years and that essentially she knew the medical history of the family. It is important to note that the fact that a requester may be aware of the nature of withheld information does not mean that it cannot be regarded as personal information relating to a third party for the purposes of the FOI Act. I find, therefore, that section 37(1) applies to the information at issue. That being said, section 37(1) is subject to the other provisions of section 37, which I consider below.
Section 37(2)
Section 37(2) provides that section 37(1) does not apply if;
a) subject to subsection (3), the information concerned relates to the applicant 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 applicant,
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 provisions of section 37(2) apply in this case and I am satisfied that they do not.
Section 37(5)
Section 37(5) provides that a request which would otherwise be refused under section 37(1) may be granted where on balance (a) the public interest that the request 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.
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 in deciding whether to grant or refuse an FOI request, any reason that the applicant 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 when records are released under the FOI Act they are considered, in effect, to be released to the world at large, as the Act places no constraints on the uses to which a released record 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, an applicant'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. 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 a case involving commercial sensitivity and confidentiality, I consider them to be relevant to the consideration of public interest tests generally.
The applicant has not identified any specific public interest factors that might serve to support the release of the information at issue in this case. Nevertheless, I accept that there is a public interest in allowing for scrutiny by next of kin of the level and quality of care provided by the HSE. However, it is not apparent to me that the release of the information at issue would serve that public interest to any real extent. 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 clear that the release of records under FOI must be consistent with the right to privacy) and that the right to privacy afforded by the Act extends to deceased persons. 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).
Having regard to the nature of the information at issue and to the fact that release of the records must be regarded as being effectively, or at least potentially, to the world at large, I am not satisfied that the public interest in release of the information would outweigh, on balance, the public interest in protecting the privacy rights of the relevant third party individuals. I find therefore that section 37(5)(a) does not apply.
Section 37(8)
Section 37(8) of the Act provides that notwithstanding section 37(1), the Minister for Public Expenditure, NDP Delivery and Reform (the Minister) may make regulations for the grant of an FOI request in certain circumstances where the individual to whom the information in the record relates is deceased. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016). The 2016 Regulations provide for the grant of access to the records of a deceased individual if the applicant is the spouse or the next of kin of the individual and the FOI body considers, having regard to all the circumstances, that 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, the Regulations do not provide of the release of joint personal information relating to the deceased and other third parties. I am satisfied that the release of the information at issue would also involve the release of personal information relating to the relevant third parties. Accordingly, I find that section 37(8) does not apply in this case.
In conclusion, therefore, I find that the HSE was justified in redacting, under section 37(1) of the Act, certain information from records 87, 94 and 100.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision to redact, under section 37(1) of the FOI Act, certain information from records 87, 94 and 100, and to refuse access, under section 15(1)(a), to any further relevant records.
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.