Decision
Mr X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-148376-V3Y2T3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-148376-V3Y2T3
Published on
Whether the HSE was justified in refusing access to certain medical records relating to the applicant’s partner on the basis of section 37 of the FOI Act
13 December 2024
In a request dated 1 February 2024 and received by the HSE on 26 February 2024, the applicant sought access to a copy of records containing the registration details of a doctor who had responsibility for prescriptions for his long-term partner, and details of all medications prescribed to her in the period 1 January to 1 June 2021. In his request, the applicant made reference to section 37(8) of the FOI Act, and associated Regulations.
On 12 March 2024, the HSE refused the request under section 37(1) of the FOI Act on the basis that release of the records would disclose personal information of another individual. It said that the applicant had not provided written consent from the relevant individual for the records to be released to him, and that he had not provided evidence of legal authority to access them. The HSE referred to a letter from the applicant dated 8 March 2024, in which he confirmed that he was not in a position to provide consent and did not hold any legal powers regarding his partner’s decision-making. The applicant sought an internal review of this decision on 15 March 2024. The HSE affirmed its decision on 9 April 2024. The applicant sought a review of this decision which was received by this Office on 13 May 2024. He said that his partner had dementia and was awaiting a capacity assessment. The applicant acted through an advocate in this case and references to him include references to his advocate, as appropriate.
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, communications with the applicant, and to the above correspondence between the parties. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned only with whether the HSE was justified, under section 37(1) of the FOI Act, in refusing the request for records relating to the applicant’s partner.
The HSE identified two records, a prescription and a prescription sheet, as falling within the scope of the FOI request.
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 would involve the disclosure of personal information (including personal information relating to a deceased individual). 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.
The requested records relate to the applicant’s partner’s medical history. I am satisfied that the information at issue in this case relates to the personal information of an identifiable individual and that section 37(1) therefore applies. However, section 37(1) is subject to the other provisions of section 37, which I will examine below.
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. In the circumstances of the case, I am satisfied that sub-sections (a), (c), (d) and (e) do not apply.
Section 37(2)(b) provides that section 37(1) does not apply when the person to whom the personal information relates consents, in writing or such other form as may be determined, to its disclosure to the requester. The applicant confirmed to the HSE and to this Office that he was not in a position to provide consent from his partner for release of the records to him. This Office accepts that a legal arrangement, for example an Enduring Power of Attorney (EPA), can potentially be accepted as providing such consent, depending on its specific wording, however the applicant has confirmed that there is no such legal arrangement in place.
I find that consent has not been provided, and that section 37(2)(b) does not apply.
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 evidence has been put forward and it is not evident to me from the content of the records that section 37(5)(b) applies.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. Firstly, 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 insofar 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 could 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 section 37(8) which I will 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 individual 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 (“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.
As I understand it, the applicant’s partner spent some time in a nursing home in 2021 and while there was prescribed certain medication. The applicant was unhappy with the medication, which he said had not been prescribed previously and was a high dose, and he made a complaint about it to the nursing home. I understand that he received a detailed response from the nursing home which he said did not include an apology for prescribing the medication, which he said the nursing home described as a clinical decision. As the applicant was unhappy with this response, he wishes to make a complaint to the Medical Council but I understand that there is some confusion over who exactly prescribed the medication and what the Medical Council number of the relevant doctor is. It is in this context that the applicant is seeking the records at issue. It seems to me that the applicant has essentially expressed a private interest for seeking access to the records. However, I accept that this is also reflective of a general public interest in ensuring that persons are or were afforded appropriate levels of care and treatment by healthcare providers, and that complaint mechanisms can be accessed when this care falls short.
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). 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, therefore, will be set aside only where the public interest served by granting release (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 the release of the records at issue might serve, to some degree, to enhance transparency around the care provided to the applicant’s partner, specifically in relation to the medication prescribed to her, it seems to me that the degree of enhancement would be quite limited, in so far as the records relate solely to one particular individual and in circumstances where a complaint was already made to the nursing home in question and a detailed response provided, albeit one that the applicant was not satisfied with. On the other hand, the remaining information in the records is of a sensitive and inherently private nature and I must regard its release as effectively, or at least potentially, to the world at large. In the circumstances, I do not accept that the public interest in releasing the withheld information in the records outweighs, on balance, the privacy rights of the individual. 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, National Development Plan 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 belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual. 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 for a right of access by a parent or guardian of an individual who has attained full age to personal information relating to the individual in certain circumstances, namely:
• 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, the individual is incapable of exercising his or her rights under the Act, and
• the FOI body considers, having regard to all the circumstances, release of the records would be in the individual's best interests.
The Minister has prepared guidance that an FOI body must have regard to when considering release of records under these Regulations. I am satisfied that the HSE made appropriate queries to try to establish whether the applicant potentially had a right of access to the records under the 2016 Regulations.
The applicant said that she has dementia and is awaiting a capacity assessment. He said that she is his partner of 20 years, that they are not married, but that they live together and that he is her carer. The HSE referred to the applicant’s correspondence of 8 March 2024 in which he said he said that he had no legal powers as regards his partner’s decision-making. It also noted that a different person was named on the applicant’s partner’s medical file as next of kin. It said that it concluded that guardianship had not been established.
For completeness I should note that the relevant test to be met is not whether the requester is the next of kin of an individual, but whether they are a parent or guardian. Clearly the question of the applicant being the parent is not relevant in this instance. I have carefully considered the limited evidence that has been provided and on balance I am not satisfied that it has been established that the applicant can be considered his partner’s guardian for the purposes of the 2016 Regulations. I therefore find that requirements of the regulations have not been satisfied, and a right of access under the 2016 Regulations does not exist.
Accordingly, I find that the HSE was justified in its decision to refuse access to the records under section 37(1) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision. I find that it was justified in its decision to refuse access to the 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.
Emer Butler
Investigator