Decision
Ms. X & The Health Service Executive (HSE)
From Office of the Information Commissioner (OIC)
Case number: OIC-200024
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-200024
Published on
Whether the HSE was justified in refusing access, under section 37(1) of the FOI Act, to records concerning the applicant’s mother in connection with her HSE funded home support package
29 May 2026
The applicant is the next of kin and carer of her mother, a person lacking mental capacity. On 23 September 2025, the applicant requested “access to all records held by the CHO7 Home Supports Office/ Older Persons Services concerning my mother… in connection with her HSE funded home support package” within a date range of 1 March 2025 to the date of the request. Records were requested under five sub-headings, in summary; relevant correspondence held by CHO7 Home Supports, internal CHO7 Home Supports records including communications with named personnel and safeguarding teams, document intake logs/ audit trails, any safeguarding plan/ closure materials, and finally, “any policy or
briefing used by CHO7 Home Supports when considering continuity/hand back decisions in this case”. (CHO denotes HSE Community Health Organisation). The applicant excluded correspondence originating from herself, unless attached to other records. The request was supported by a copy of her passport and a letter from her mother’s GP outlining her incapacity.
By decision of 20 October 2025, the HSE refused the request under section 37(1) of the FOI Act, which serves to protect third-party personal information. It also found that the Freedom of Information (Section 37(8)) Regulations 2016 (the 2016 Regulations) did not apply on the basis that the applicant was not a parent or guardian of the individual to whom the records sought relates.
On 11 November 2025, the applicant requested an internal review. She said her mother lacked capacity to exercise her own access rights and argued that the HSE’s approach was inconsistent because her mother’s safeguarding records were released to her under General Data Protection Regulations (GDPR). On 19 December 2025, the HSE affirmed its decision to refuse the request sunder section 37(1). It enclosed a schedule of records wherein it also indicated that certain categories of records sought were exempt under section 15(1)(a) of the Act on the ground that the records do not exist.
On 22 December 2025, the applicant applied to this Office for a review of the HSE’s decision. Her submissions included that the HSE failed to properly consider section 37(8) of the FOI Act and failed to meaningfully engage with public interest considerations. Noting the HSE’s reliance on section 15(1)(a) to refuse access to certain categories of records, she said she was not satisfied that adequate searches were carried out or that the conclusions reached are reasonable. She said the schedule of records accompanying the decision contained references to unrelated names, dates, and material that do not correspond with her request. She said these inconsistencies raise concerns regarding the reliability of the review process and the adequacy of record identification and examination.
During the course of the review, the HSE explained that, unfortunately, a schedule of records relating to another individual’s request was scanned and emailed to the applicant along with her internal review decision. It said it followed data protection procedures in relation to the schedule that was sent in error and has asked the applicant to confirm deletion of the email response she received and said it re-issued the internal review decision to her.
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 outlined above and to the submissions made by the parties during the review. 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.
Having regard to the fact that the applicant’s arguments concerning the adequacy of the searches undertaken were based on the incorrect schedule that was released, and given my findings below in respect of the nature of the information contained in the records, I propose to give no further consideration to that matter. Accordingly, this review is concerned solely with the question of whether the HSE was justified in refusing access, under section 37(1) of the FOI Act, to the requested records.
Section 37(1)
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 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).
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, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual. It is
important to note that the fact that a requester may be aware of the nature of the information at issue or may have even provided some or all of the information to the body in question does not mean that it cannot be regarded as personal information relating to a third party for the purposes of the FOI Act.
The applicant argued that the relevant records should not have been uniformly treated as personal information by the HSE, but rather the HSE should have reached a decision on a record-by-record basis, and accordingly, the suitability of the record for partial release under section 18 of the FOI Act required consideration.
The records sought in this case are records relating to the applicant’s mother in connection with her home support package. The objective of the HSE’s home supports service is to help older people say in their own homes for as long as possible. Having regard to the nature of the records sought, I am satisfied that their disclosure would involve the disclosure of personal information relating to the applicant’s mother. I note that in her submissions, the applicant argued that the categories of records sought were such that they may include governance, administrative, contractual, and publicly funded service management information that is not exclusively personal information. The applicant’s request was specifically for records held in connection with her mother’s home support package and included “Any policy or briefing used … when considering continuity/handback decisions in this case” (my emphasis). In the context of the request made, I am satisfied that the disclosure of any such records would involve the disclosure of personal information relating to the applicant’s mother as it would indicate the nature of decisions taken in respect of her care. Nevertheless, while it is open to the applicant to make a fresh, general request for policy documents, I note that during the review, the HSE indicated that it would provide the applicant with policy documents as a measure outside the FOI Act. I also note that a number
of the records also contain personal information relating to the applicant. I am satisfied that such information is inextricably linked with the personal information of the applicant’s mother, i.e. it is joint personal information relating to the applicant and her mother. Accordingly, I find that section 37(1) applies to all of the records sought. However, that is not the end of the matter as section 37(1) is subject to the provisions of subsections (2) and
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 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,
Paragraph a) serves to disapply section 37(1) where the information sought relates solely to the requester. It does not serve to disapply section 37(1) to joint personal information. Accordingly, I find that paragraph a) does not apply in this case. Moreover, no arguments have been made that paragraphs a) to e) apply and I am satisfied that they do not.
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Section 37(5)
Section 37(5), provides that an FOI body may grant a request which would otherwise fall to be refused under section 37(1), where:
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 individual aforesaid”
On the matter of the applicability of paragraph b), the HSE said it was not of the view that the release of the records would benefit the applicant’s mother and that it had no concerns relating to the service provision to her mother. While the applicant argued that the release of relevant records was in the best interests of her mother, she did not argue that granting the request would benefit her mother, nor is it apparent to me that it would. I find that paragraph 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) (which I have addressed above) 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 in The 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.
The applicant submitted that the HSE’s decision did not meaningfully balance the public interest at section 37(5), and that it failed to weigh the public interest in “…safeguarding, continuity of care, and service oversight for a vulnerable older person who lacks capacity.” The HSE acknowledged public interest considerations including openness, transparency and accountability. However, it also submitted that members of the public were entitled to be ensured of confidentiality with respect to their records. It considered release would not further serve the public interest to such an extent that a breach of the
individual’s right to privacy would be justified. I fully accept that there is a strong public interest in allowing for scrutiny by individuals of the level of care afforded to their family members, and that the public interest is even stronger in the case of vulnerable and/or incapacitated individuals in receipt of such care.
I accept that the release of the records at issue would serve that public interest in this case. On the other hand, the FOI Act recognises the strong 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. 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). The question I must consider in this case is whether the public interest in granting the request in this case would, on balance, outweigh the privacy rights of the applicant’s mother. Having regard to the inherently sensitive and private nature of the records at issue, and having regard to the fact that the release of records pursuant to section 37(5)(a) is, potentially at least, release to the world at large, I am satisfied that it would not. I find, therefore, that section 37(5)(a) does not apply.
Section 37(8)(a) provides that notwithstanding subsection (1), the Minister for Public Expenditure and Reform (the Minister) may provide for regulations for the grant of an FOI request where 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. The relevant regulations are 2016 Regulations. Among other things, the 2016 Regulations provide that, notwithstanding section 37(1), a request may be made for personal information relating to an individual who has attained full age by a guardian of the individual where, at the time of the request, the individual has, or is subject to, a psychiatric condition, mental incapacity or severe physical disability, the incidence and nature of which is certified by a registered medical practitioner, and by reason of that condition, incapacity or disability, is incapable of exercising his/her rights under the Act. They provide that such a request shall, subject to the other provisions of the FOI Act, be granted where the FOI body considers that access to the records sought would, having regard to all the circumstances, be in the individual’s best interests. It is not in dispute that the applicant’s mother is incapable of exercising her rights under the FOI Act. Therefore, the key issue for consideration is whether the applicant can properly be regarded as her mother’s guardian for the purposes of the 2016 Regulations.
The applicant initially submitted that she met the criteria of a special category of requestor under section 37(8) of the FOI Act and the Regulations. The applicant submitted that she is the daughter, primary carer, and long-standing advocate for her mother in respect of the HSE. The HSE submitted there was no evidence available to it that the applicant met the definition of a special category of requestor as per the 2016 Regulations.
It is not a matter for this Office to determine if an applicant is the guardian of an individual who is incapable of exercising his or her rights under the Act. We would expect the applicant to be in a position to provide documentary evidence to demonstrate guardianship. It seems to me that no such evidence has been presented in this case. While I fully accept the applicant’s statement that she is the primary carer and longstanding advocate for her mother in respect of the HSE, this does not mean she can be regarded as her mother’s guardian for the purpose of the 2016 Regulations.
I note that during the course of the review, this Office’s Investigator sought submissions from the applicant relevant to assessment of the applicant as guardian. The applicant’s response did not comprehensively address questions raised by the Investigator. The term “guardian” is not defined by the Regulations. Notably, “guardian” as applied in the Regulations does not appear to be accurate to the current law on mental capacity.
According to public-facing information, guardianship of adult wards of court applied under the Lunacy Regulations Act 1871. However, presently, the Assisted Decision-Making (Capacity) Act 2015, (“the Capacity Act”) which fully commenced in 2023, provides for tiered decision-making supports including Court appointed decision-making representatives, monitored by the Decision Support Service. The tier of “decision-making representative” appears to align to guardianship, denoting a Court appointment with oversight. I note that in this case, the applicant has acknowledged that she was not a registered Decision-Making Representative under the Assisted Decision Making (Capacity) Act 2015. Having considered the submissions, available evidence and the legal framework, I do not consider the applicant is her mother’s guardian for the purpose of the 2016 Regulations. Accordingly, I find that the 2016 Regulations do not provide for a right of access to the records sought. In conclusion, therefore, I find that the HSE was justified in refusing access to the records sought under section 37(1) of the FOI Act. 7
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse access, under section 37(1) of the FOI Act, to records concerning the applicant’s mother in connection with her HSE funded home support package.
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