Decision
Mr B and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-153368-B8Z8F9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-153368-B8Z8F9
Published on
Whether the HSE was justified in refusing access, under section 37(3) of the FOI Act, to a copy of the applicant’s complete medical file
4 July 2025
On 06 October 2023, the applicant submitted a request to the HSE, through his legal representatives, for a copy of his complete medical file. All references to correspondence with the applicant in this decision should be taken to include correspondence with his legal representatives. On 13 May 2024, the HSE issued a decision wherein it refused the request under section 37(3) of the FOI Act. Pursuant to section 37(4), it offered the applicant an opportunity to nominate a health professional to access the records concerned on his behalf. On 12 June 2024, the applicant requested an internal review of the HSE’s decision, wherein it was explained why access to the records was required. No health professional was nominated. The HSE affirmed its original decision on 25 June 2024 and offered the applicant another opportunity to nominate a health professional. On 01 November 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. 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 solely with whether the Hospital was justified in refusing the applicant’s request for a copy of his medical records under section 37(3) of the FOI Act.
Before I address the substantive matters arising in this case, I wish to make some preliminary comments. First, the HSE did not issue its original decision within the timeframe set down in the FOI Act. Section 13(1) of the FOI Act requires FOI bodies to issue original decisions within four weeks of receipt of requests for records. It is incumbent on me to emphasise to the HSE that the requirement to issue decisions on FOI requests within the periods set out in the FOI Act is clear and unequivocal. The HSE should take steps to ensure that its decisions on FOI requests issue within the relevant statutory timeframes.
Secondly, while I am required to give reasons for my decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. This means that the reasons I can give for my decision in this case are quite limited.
Section 37(3)(a) of the FOI Act provides that an FOI body may refuse a request for records of a medical or psychiatric nature relating to the requester if it considers that disclosure of the information concerned to the requester might be prejudicial to his or her physical or mental health, well-being or emotional condition. Where it refuses a request under subsection (3), it must offer access to the records to such health professional having expertise in relation to the subject matter of the records as the requester may specify (subsection (4) refers).
This Office considers that the intention of section 37(4) is to allow an appropriate health professional with relevant expertise to decide how sensitive information should be made available to requesters in such a manner that seeks to avoid the harms identified in section 37(3). It is noteworthy that the threshold for meeting the exemption in section 37(3) is quite low as it is sufficient for the body to show that release of the records might give rise to the harm identified. Nevertheless, this Office considers that where section 37(3) is relied upon to refuse direct access to a record, there must be evidence to support the opinion that there is a real and tangible possibility of harm being caused to the physical or mental health, wellbeing, or emotional condition of the requester as a result of direct access to the record in question.
It is not in dispute that the records at issue are of a medical or psychiatric nature relating to the applicant.
In its submission to this Office, the HSE said the applicant is a long-term patient of a named Hospital’s Psychiatric Unit and that there are no plans to discharge him. It said the applicant’s clinical team considers that providing access to his records would be detrimental to his physical or mental health, well-being or emotional state which would result in a deterioration in his mental state compromising efforts to focus on stabilisation and recovery. It provided a letter from his treating Consultant Psychiatrist outlining this opinion.
On the matter of compliance with section 37(4), the HSE said the applicant was invited to nominate a relevant health professional to access the records. It said the applicant’s legal representatives contacted the HSE on 18 June 2024 and suggested that the records would go directly to them and not directly to the applicant. It said it explained to the legal representatives that any request from a third party on behalf of an individual is treated as if it was submitted directly by the individual. It explained that on foot of a previous request, it granted access to a number of volumes of the records to a GP the applicant had nominated as a relevant health professional and that it is not aware if the applicant had reviewed his records in the company of that health professional.
In the application for internal review, the applicant’s legal representatives explained that they needed access to the records to determine if the applicant had received appropriate care while attending the mental health services and to ensure that the applicant could be given informed advice on the matter. During the course of the review, they said they were not in a position to nominate a relevant health professional and that they needed to see records in order to ascertain the type of medical professional needed to prepare a report for the applicant’s case.
Having examined the records provided to this Office for the purposes of our review, I am satisfied that they contain sensitive medical/psychiatric information relating to the applicant. I am also satisfied that the HSE properly and reasonably relied on the opinion of the applicant’s treating Consultant Psychiatrist in forming the view that the release of the records to the applicant might be prejudicial to his or her physical or mental health, well-being or emotional condition. Moreover, I am satisfied that the HSE rightly deem the release of records to a requester’s legal representatives to be the same as release to the requester. While the applicant’s legal representatives explained why they wanted to access the records, 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. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
I wish, however, to address the HSE’s comments in its submissions during the course of the review that on foot of the applicant’s previous request, it prepared the relevant records for release to the applicant’s nominated health professional with “redactions and exemptions” applied in accordance with the FOI Act. It indicated that the records provided to this Office during the review that contain redactions were being processed with a view to releasing the redacted copies to a nominated health professional and that information about third parties would have been withheld under section 37(1), which is concerned with the protection of third party personal information.
I do not accept that the release of redacted copies records complies with the requirement under section 37(4) that access be offered to records refused under section 37(3) to a nominated health professional. If the HSE intends to make any redactions to the records that it is willing to make available to the applicant’s nominated health professional on foot of its recent offer, it should identify the basis on which information is being withheld whereupon the usual rights of appeal will be available to the applicant.
In all of the circumstances, I am not satisfied that the HSE was justified in its decision to refuse access to all of the records at issue under section 37(3), in circumstances where it was not prepared to provide full unredacted copies of those records to a nominated health professional. However, it would simply not be appropriate for me to direct the release of the records in full. Instead, I consider that the most appropriate course of action to take is to annul the decision of the HSE and to remit the request back to the HSE for consideration afresh. If it wishes to refuse access to any records, in whole or in part, on grounds other than section 37(3), it must provide the applicant with its decision on those records and its reasons for its refusal. It will remain open to the HSE consider the applicability of section 37(3) to any and all records to which it is prepared to offer access to a nominated health professional.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE’s to refuse the applicant’s request for a copy of his complete medical file under section 37(3) of the FOI Act and I direct it to consider the request afresh.
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