Decision
Mr M and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-146551-Q2M6X9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-146551-Q2M6X9
Published on
6 February 2025
On 11 September 2023, the applicant submitted a request to the HSE for information from his deceased grandfather’s mental health file. He indicated that he was seeking access to the information for genealogical purposes. He said he would particularly welcome a photograph of his grandfather and some details about the date of his admission and general condition. Following further correspondence between the parties, the HSE refused the request on 3 January 2024 under section 37 of the FOI Act. It said it had also considered the provisions of the relevant Regulations that provide for the right of access to records of deceased persons in certain circumstances and while it was satisfied that the applicant was the next of kin of the deceased, it considered that that the public interest would not, on balance, be better served by granting the request.
On 12 January 2024, the applicant sought an internal review of the HSE’s decision. Among other things, he said that in circumstances where his grandfather died over fifty years ago and the amount of information sought was limited, he did not accept that the request should be refused in full. He also said that the nature of his grandfather’s illness was relevant to his family in terms of knowing potential genetic risk factors relating to the family’s mental health. He said he had no interest in information relating to third-parties or his grandfather’s treating medical staff or in any medication provided. On 6 February 2024, the HSE varied its decision. It granted partial access to one page of a 5-page record it identified as coming within the scope of the request.
By letter dated 15 February 2024, the applicant applied to this Office for a review of the HSE’s decision. He argued that he should have access to enough of his late grandfather’s medical records to establish the nature of his illness and whether it could have a hereditary legacy. He questioned if the decision-maker had sufficient medical training to conclude that the records did not contain information on hereditary conditions. He said he was particularly concerned about the redaction of a word that he believed to be intrinsic to the form released and not personal to his grandfather.
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 referred to above and the submissions made by both parties. I have also had regard to the contents of the record at issue. I have decided to conclude this review by way of a formal, binding decision.
As the applicant indicated in his correspondence with the HSE that he had no interest in information relating to third-parties or to his grandfather’s treating medical staff, I have excluded that information from the scope of this review. Accordingly, the review is concerned with whether the HSE was justified in withholding the information in the record that relates solely to the applicant’s grandfather under section 37(1) of the FOI Act.
The Record
The record at issue comprises five-pages relating to the mental health care of the deceased. It contains details of information recorded at his admission to the hospital, some of which has been released to the applicant. The vast majority of the information redacted essentially comprises observations recorded by medical staff of the deceased’s mental and physical state on various dates over a number of years.
Section 37
Section 37(1)
Section 37(1) of the FOI Act provides for the mandatory refusal of a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Section 2 of the 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 the 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 definition provided for under section 2, comprises personal information, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual, and (xiv) the views or opinions of another person about the individual.
Having regard to the definition of personal information and to the nature of the information redacted from the record at issue, I am satisfied that its release would involve the disclosure of personal information relating to the applicant’s grandfather and that section 37(1) of the Act applies. On the matter of the information redacted from that part of page 1 that the applicant believed to comprise part of the standard wording of the form and not personal information, I am not, unfortunately, in a position to provide a more detailed description of that information in light of the requirement in section 25(3) of the Act that the Commissioner must take all reasonable precautions in the performance of his functions to prevent the disclosure of exempt information. I can say, however, that I am satisfied that the release of that redacted information would involve the disclosure of personal information relating to the applicant’s grandfather. I am satisfied that section 37(1) applies to all of the relevant information withheld. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37.
Section 37(2)
Section 37(2) of the FOI Act 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,
I am satisfied that none of the circumstances in section 37(2) apply in this case.
Section 37(5)
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 person to whom the information relates. I am satisfied that section 37(5)(b) of the FOI Act does not apply in this case.
On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates. 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 and 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. I have also had regard to the comments of the Supreme Court inThe 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’). In this regard, I note that a public interest should be distinguished from a private interest.
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. 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.
In his submissions to this Office, the applicant said there is no public interest or justification for the open-ended withholding of information relating to the duration of his grandfather’s time in the hospital and the nature of his illness. He said it is of huge personal interest to him and his family in obtaining information relating to the nature of his grandfather’s illness and any potential genetic risk factors relating to their mental health. He provided some family history details and a copy of an entry from the publicly available Deaths Register which recorded senility as one of the certified causes of his grandfather’s death. He suggested that this supported his view that there was a genetic link between his grandfather’s health and a family member and he said that access to the information would be of assistance to him in relation to his own health. He cited a previous decision of this Office (Case OIC-53567) which he believed to support his case. He also referenced an RTÉ radio broadcast which he considered to reflect efforts by the HSE at the highest level to be open about the past records of mental institutions.
On the matter of the relevance of Case OIC-53567, I am satisfied that this Office’s decision in that case does not support a more general argument for the release of mental health records such as those at issue here. While the records at issue in Case OIC-53567 were mental health records of a deceased relative of the requester, the decision simply found that the HSE had not properly considered the relevant Regulations which provide for a potential right of access to the records of deceased persons and it directed the HSE to consider the request afresh. It did not direct the release of such records.
On the matter of the applicant’s arguments concerning hereditary conditions, it seems to me that while he has essentially identified a private interest in seeking access to the record at issue, that interest is reflective of a more general public interest in ensuring that members of the public are afforded access to information held by the HSE that may affect their health, which may include information relating to hereditary conditions. On the other hand, it is important to note that, notwithstanding the age of the record, the information at issue concerns an inherently private and sensitive matter relating to a third-party. Moreover, as I have outlined above, notwithstanding the reasons given by the applicant for seeking access to the records, I must regard any release pursuant to section 37(5)(a) of the FOI Act as, in effect, release, or at least potential release, to the world at large. I am not satisfied that the release of such sensitive and private information potentially to the world at large would on balance, outweigh the right to privacy of the deceased. I find, therefore, that section 37(5)(a) does not serve to disapply section 37(1) in this case.
Section 37(8) and the 2016 Regulations
Section 37(8) of the FOI Act provides that, notwithstanding subsection (1), the Minister for Public Expenditure, NDP Delivery, and Reform (‘the Minister’) may provide by regulations for the grant of an FOI request where the individual to whom the record concerned relates is deceased 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 (S.I. 218 of 2016)), as amended. The 2016 Regulations provide for the grant of a request for the records of a deceased individual where the requester is the spouse or the next of kin of the individual and, 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.
The HSE accepts that the applicant is the next of kin for the purposes of the Regulations. 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 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 Minister has published guidance on the application of the 2016 Regulations (‘the Guidance’), in accordance with section 48(1) of the FOI Act. Section 48(3) of the FOI Act requires FOI bodies to have regard to guidelines published by the Minister in the performance of their functions. The Guidance 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.
In its submissions, the HSE said it took account of the confidentiality of the information at issue. It said the record details inherently private and sensitive information. It said the decision-maker also considered that the language utilised in the record regarding / describing mental health illness is not the same as today’s standard and also would not provide an understanding into the deceased’s illness. Referencing a number of specific entries in the record, the language used, and the sensitivity of the information, it said it strongly believes that the deceased would not have consented to the release of the record when living and that release “would undoubtedly damage the good name and character of the deceased”. It further argued that the release of inherently private and sensitive health information after death or many years after death would harm / impact the giving and receiving of confidential personal sensitive information by service users going forward and would impact service users’ trust in mental health services. It said its decision-makers had verbal consultations with a consultant psychiatrist in relation to the content and context of the record which informed the considerations outlined.
It said the Consultant Psychiatrist’s opinion was that based on the records of the time, a confident diagnosis could not be made and any question of heritability would therefore be extremely difficult to establish. It said the consultant psychiatrist did not believe the contents of the record would justify or allay concerns relating to mental illness in second generation relatives.
Having carefully considered the matter, while I have sympathy for the applicant’s position, I am satisfied that the HSE was justified in deciding that, having regard to all the circumstances, the public interest would, on balance, be better served by refusing to grant the applicant’s request. While I fully accept that the record is quite old, I am not persuaded that this sufficiently diminishes the inherent sensitivity of the information at issue and I am satisfied that the deceased would not have consented to the release of the record when living. Moreover, while I have acknowledged that there is a public interest in ensuring that members of the public are afforded access to information held by the HSE that may affect their health, including information relating to hereditary conditions, I accept that HSE’s argument, based on advice received from a consultant psychiatrist, that the language utilised in the record regarding / describing mental health illness is not the same as today’s standard and would not provide an understanding into the deceased’s illness, and that the contents of the record would not justify or allay concerns relating to mental illness in second generation relatives. I find, therefore, that the 2016 Regulations do not provide for a right of access to the record at issue in this case.
In conclusion, I find that the HSE was justified in refusing access, under section 37(1) of the Act, to the information that was redacted from the record at issue relating to the applicant’s grandfather.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision to refuse access, under section 37(1) of the Act, to certain information contained in the mental health file of the applicant’s deceased grandfather.
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