Decision
Ms. X Health Service Executive (HSE)
From Office of the Information Commissioner (OIC)
Case number: OIC-151844-B8B4T1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-151844-B8B4T1
Published on
Whether the HSE was justified in refusing access to certain information contained in the applicant’s mental health records under sections 37(1) of the FOI Act
20 June 2025
In a request dated 11 December 2023, the applicant sought access to her psychiatric records from January 2000 to the end of 2023. As the HSE failed to issue its decision on the request within the statutory time-frame, the applicant sought an internal review of the deemed refusal of her request. As the HSE, yet again failed to issue its internal review decision within the statutory time-frame, the applicant applied to this Office on 28 July 2024, for a review of its deemed refusal of the request. Following correspondence with this Office, the HSE eventually issued its effective position on the request, wherein it part-granted the request. It said access to some of the records was being refused under sections 37(1), 37(3) and 37(7) of the FOI Act. On 6 September 2024, the applicant confirmed that she wanted the review to proceed.
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 examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The HSE identified three schedules of records as coming within the scope of the applicant’s request. Schedule 1 contains 741 pages with 65 pages partially or fully redacted, schedule 2 contains 292 pages with 56 pages partially or fully redacted, while schedule 3 contains 395 pages with 37 pages partially or fully redacted.
The HSE originally withheld the information on the basis of sections 37(1), 37(3) and 37(7) of the FOI Act. Following a request for submissions from this Office, it said that having re-examined the records withheld under section 37(3), those records should have been withheld under sections 37(1) and 37(7) of the FOI Act. It also made submissions in relation to the applicability of section 37(8). The applicant was made aware of this and given the opportunity to make further submissions. None have been received to date.
This review is concerned solely with whether the HSE was justified in refusing access to the information withheld from the records at issue under section 37 of the FOI Act.
The applicant raised issues concerning inaccurate information contained in some of the documents provided by the HSE. Specifically, she referenced an incorrect spelling of a part of her address, an incorrect year of birth and an incorrect name. This review is concerned solely with whether the HSE was justified in withholding certain information from the records in question and is not concerned with the accuracy, or otherwise, of the records. Regardless, it is open to the applicant to simply ask the HSE to correct the relevant entries, outside of the FOI process. Alternatively, she may wish to make an application, under section 9 of the FOI Act, for the amendment of any personal information in the records she believes to be incomplete, incorrect or misleading.
The applicant also expressed her annoyance and upset at how the HSE has approached her request from the start and the significant delay in receiving a decision on the request. This Office raised the matter of the significant delay with the HSE. In response, it said the Mental Health Services acknowledges that there was an unacceptable delay in processing the FOI request. It said a letter of apology was issued to the applicant in August 2024 by the internal reviewer acknowledging the delay in issuing a response. It said the delay relates to the sheer volume of FOI requests that have been received by the Mental Health Services and the lack of resources within the Mental Health Services to ensure that all records which may be relevant to the request are reviewed in accordance with FOI legislation. It said that, within Mental Health Services, there has been a considerable movement of staff within the past 18 months and this has also contributed to the delay associated with processing FOI requests. It said the Mental Health Services is aware of its obligations under the FOI legislation, that the wider team has recently participated in FOI training and they are also in the process of finalising a Standard Operating Procedure which will include a mechanism for identifying delays associated with the legislative timeframes.
The HSE’s processing of the applicant’s request clearly fell well short of the required and expected standards and was unsatisfactory. Notwithstanding the explanation provided, 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. While it is a matter for the HSE to ensure that it has afforded adequate resources to the FOI function, this Office has stated many times before that the administration of the FOI Act is a statutory function which should be afforded as much weight as any other statutory function. The HSE should take appropriate steps to ensure that it can issue decisions on FOI requests within the relevant statutory timeframes.
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, including personal information relating to a deceased individual. 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). Essentially, this means that while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, the request shall be refused pursuant to section 37(7) if that personal information is inextricably linked to personal information relating to parties other than the applicant. Section 37(1) is subject to sections 37(2)(b) to (e), 37(5) and 37(8).
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.
The HSE said it examined the records at issue and is satisfied that the withheld information comprises personal information of individuals other than the applicant including a deceased individual. It said it accepts that most of the personal information that is being withheld is already known to the applicant, e.g. third-party names, ages, telephone numbers etc. It said it isn’t aware of the current relationship between the applicant and these third parties and, it is of the view, therefore, that this personal information should be withheld.
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.
Having reviewed the records, I am satisfied that all of the information withheld comprises either personal information relating to other third parties or joint personal information relating to the applicant and other third parties. I find, therefore, that section 37(1) applies. However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section, specifically subsections (2), (5), and (8). Accordingly, I must proceed to consider whether any of those other provisions serve to disapply section 37(1) in respect of any or all of the information at issue.
Section 37(2)
Section 37(2) provides that section 37(1) does not apply if;
(a) the information concerned relates to the requester concerned,
(b) the individual to whom the information relates consents, in writing or other such form as may be determined, to its disclosure to the requester,
(c) information of the same kind as that available 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 it 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 circumstances outlined above at subsections (a) to (e) are relevant in this case, nor do I consider any to apply. I find that section 37(2) does not apply.
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. No argument has been made that section 37(5)(b) applies in this case and I am satisfied that it 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) and 37(8), 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 HSE said it accepts that most of the redacted information was provided by the applicant but argues there is a wider public interest in having a confidential medical service where the expectation is that third party information will not be shared without obtaining explicit consent from the third parties to whom the information relates. It considers that the exempted records contain information of a personal nature and concluded that the public interest in granting access to those records does not, on balance, outweigh the right to privacy of the third parties concerned. It said it would require explicit consent from all of the individuals before such information could be shared with the applicant. It said any information obtained from third parties must also be treated as confidential unless it is necessary to disclose information about a third party to protect other individuals or the wider public from harm. It said it has an ongoing responsibility to protect the confidentiality of information which it receives from third parties.
In her correspondence with this Office, the applicant said the withheld records may contain inaccurate information that needs to be corrected. She said she does not believe that releasing her full records will impact on, or give information which negatively impacts on, a public body or the working of same. She suggested the HSE may be using the FOI Act to hide something e.g. failure to follow proper procedure and/or failure in its treatment and duty of care towards her. She also said she has reason to believe that some of the redacted information has been released in full or in part in other parts of the file.
On the matter of the applicant’s assertion that some of the redacted information has been released in full or in part in other parts of the file, no further supporting details have been provided and having considered the records, it is not apparent to me that any of the withheld information has already been released. I accept that there is a public interest in individuals ensuring that information held about them is accurate and in enhancing the transparency and accountability of the HSE in respect of the level and nature of care and treatment afforded to individuals. It seems to me that those interests have been served to a significant degree by the release of the vast majority of the information the HSE holds in respect of the applicant’s care and treatment and it is not apparent to me that the release of the records at issue would further enhance that transparency and accountability to any significant degree. The question I must consider is whether those public interest factors in favour of release of the records outweighs, on balance, the privacy rights of the relevant third parties. In my view, they do not.
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 it 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). While I accept that much of the information is not of a particularly sensitive nature, I must have regard to the fact that the release of the records must be regarded, in effect, as release to the world at large.
Having considered the matter, and bearing in mind the strong public interest in protecting the right to privacy, I do not accept that the public interest in releasing the information at issue outweighs, on balance, the privacy rights of the relevant third parties. I am not satisfied that any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information at issue exists in this case. Accordingly, I find that section 37(5) does not serve to disapply section 37(1) in respect of any of the information at issue.
Section 37(8)
Section 37(8) provides that notwithstanding subsection (1), the relevant Minister may provide by regulations for the grant of an FOI request where the individual to whom the record concerned relates is dead 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 (the 2016 Regulations). Among other things, the 2016 Regulations provide that, notwithstanding section 37(1), a request may be made for records which involves the disclosure of personal information relating to a deceased individual, and shall, subject to the other provisions of the FOI Act 2014, be granted where the requester is the spouse or the next of kin of the individual and the FOI body considers, 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 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.
Some of the redacted information relates to a deceased third party known to the applicant. The HSE accepts that the applicant is the next of kin of the deceased individual and has a right to apply for access to such information. It said the information is highly sensitive and, while it understands that the applicant is aware of this information, release under FOI is generally considered to constitute release to the world at large. It considers that releasing the information would result in a significant risk of a breach of the deceased’s right to privacy. On the question of whether the deceased would have consented while living to the release of the information, it said there is no statement available that outlines the deceased’s wishes and so it has decided that it is unlikely that the deceased would have agreed to the release of such sensitive information. It said that while having access to the deceased person’s information may serve the applicant’s private interests in a minor way, it is of the opinion that release of such sensitive and private information does not, on balance, outweigh the right to privacy of the deceased individual and is not in the public interest.
The applicant was invited to make submissions in relation to section 37(8) but no such submissions have been received.
It is important to note that the fact that the applicant is the next of kin of the deceased does not mean that she is automatically entitled to access personal information relating to the deceased. 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 2016 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 Guidance referenced above 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.
It is not, in my view, appropriate to consider the release of personal information as potential release to the world at large when considering whether a right of access exists pursuant to the 2016 Regulations given that the Regulations require the request to be considered based specifically on the identity of the requester. However, I have considered the factors outlined in the Guidance that should be taken into consideration when deciding whether release is appropriate and the submissions made on this issue. I am satisfied that the information at issue is inherently private, sensitive personal information. While I cannot be certain that the deceased would or would not have consented to the release of the records, in the absence of any clear indication of same I believe that I must have regard to the sensitivity of the information to be released and the possibility that it has the potential to damage the good name and character of the deceased. I find, therefore, that section 37(8) does not serve to disapply section 37(1) in respect of that information.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision. I find that the HSE in redacting certain information from the applicant’s mental health records under section 37(1) of the FOI Act.
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