Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-149562-T6Y9R1, OIC-149556-S8R4S8, OIC-149394-T0F1W6 & OIC-146677-V7C3Y8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the HSE was justified in refusing to release various records and parts of records relating to the applicant’s late parents
27 August 2025
The applicant was the carer for his now deceased parents. Due to safeguarding concerns, the HSE took both parents into care placements together. The HSE also commenced wardship proceedings in relation to one parent, which ended on that parent’s death. The applicant disagrees strongly with the steps taken by the HSE and others in relation to his parents.
On 7 June 2023, the applicant made an eight-part FOI request to the HSE, seeking access to various records relating to his late mother. He made a similar request to the HSE on 12 July 2023, seeking access to records relating to his late father. Amongst the records sought in both requests were various records held by the Older People’s Services and what I will term generally as Safeguarding and Protection records. The applicant has sought reviews by this Office in relation to the HSE’s decisions on such records. The background to each review is summarised below:
OIC-146677-V7C3Y8 (Mother’s Older People’s Services’ records)
The HSE’s decision of 3 July 2023 refused the request under section 37(1) of the FOI Act (personal information). Although referring incorrectly to Regulations issued under the FOI Act 1997, the decision considered the applicant’s right of access to the records in his capacity as his mother’s next of kin. The HSE found that the applicant was not entitled to access to the requested records having regard to relevant circumstances and the public interest.
On 26 July 2023, the applicant sought an internal review of the HSE’s decision. On 24 August 2023, the HSE affirmed its decision on the request.
On 22 February 2024, the applicant applied to this Office for a review of the HSE’s decision. During the review, however, the HSE granted partial access to the relevant records. It relied on section 37(1) of the FOI Act in relation to the remaining records and parts of records.
The applicant subsequently confirmed that he wished for the review to proceed. He also argued that the HSE should hold further relevant records.
OIC-149556-S8R4S8 (Mother’s Safeguarding and Protection records)
The HSE’s decision of 28 June 2023 refused the request under section 37(1) of the FOI Act. It also considered the Regulations made under section 37(8) of the FOI Act (which provide for the release of information about deceased persons to the next of kin and certain others), and found that the applicant was not entitled to access to the records under the relevant provisions. On 4 July 2023, the HSE informed the applicant that its June decision had incorrectly referred to provisions of the FOI Act 1997, and provided the applicant with the correct details.
On 26 July 2023, the applicant sought an internal review of the HSE’s decision. The HSE’s internal review decision of 6 December 2023 granted partial access to the requested records. It withheld the remaining records and parts of records under sections 31(1)(a) (legal professional privilege), 37(1), and 35(1)(a) (confidential information) of the FOI Act.
On 5 June 2024, the applicant applied to this Office for a review of the HSE’s decision. He also argued that further relevant records exist.
OIC-149394-T0F1W6 (Father’s Older People’s Services records)
The HSE’s decision of 6 September 2023 refused the request under section 37(1) of the FOI Act (personal information). While satisfied that the applicant was his father’s next of kin, the HSE found that he was not entitled to the records under the section 37(8) Regulations.
The applicant sought an internal review on 14 September 2023. On 28 November 2023, the HSE granted partial access to the requested records. It withheld the remaining records and parts of records under section 37(1) of the FOI Act.
On 28 May 2024, the applicant applied to this Office for a review of the HSE’s decision. He also argued that further relevant records exist.
OIC-149562-T6Y9R1 (Father’s Safeguarding and Protection records)
The HSE did not issue a decision on the relevant parts of the request within the timelines set out in the FOI Act. In effect, this amounts to a refusal of access to the requested records.
On 22 August 2023, the applicant sought an internal review of the HSE’s effective decision.
The HSE’s internal review decision of 6 December 2023 granted partial access to the requested records. It withheld the remaining records and parts of records under sections 31(1)(a), 35(1)(a), and 37(1) of the FOI Act.
On 5 June 2024, the applicant applied to this Office for a review of the HSE’s decision. He also argued that further records exist.
During the reviews, the HSE granted access to a small number of further records. I have now completed my reviews in the above four cases in accordance with section 22(2) of the FOI Act. I have decided to conclude them by way of a composite formal, binding decision. In carrying out my reviews, I have had regard to the above exchanges and to various correspondence between this Office, the HSE and the applicant, to the contents of the records at issue, and to the provisions of the FOI Act.
In particular, I wrote to the applicant in relation to the four reviews on 27 June 2025. I said that my final decision would take account of any reply he may wish to make. I asked him to respond by 11 July 2025. I said that if I did not hear from him by this date, I would make my decision on his applications as soon as possible thereafter, on the lines that I had set out in my letter.
The applicant emailed me on 11 July 2025 to say that he would need at least four more weeks to respond to my letter. He explained why this is a busy period for him and said that he wanted the OIC to have all the facts before making a final decision. I informed him that I would extend the deadline for reply to 8 August 2025. I have received no further contact from him.
The scope of this review is confined to the sole issue of whether the HSE was justified under the FOI Act in withholding various records and parts of records covered by the applicant’s requests.
The review does not extend to any other matter, including the HSE’s handling of the applicant’s FOI requests and/or any apparent inconsistencies in its decision making on the two requests. In particular, this Office has no role in examining, or making findings on, the veracity of any records or the actions of the HSE or any other party in relation to the care or treatment of the applicant’s parents or other matters.
Section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. This provision also has implications for the extent to which I can give reasons for my decision in this case.
Release of records under FOI is generally understood to have the same effect as publishing them to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.
Before I consider the applicant’s right of access to the withheld details, I wish to address the HSE’s position that certain excerpts of the records are not covered by the requests.
The HSE contends that references to the applicant’s mother, as contained in his father’s records, are outside the scope of the request for his late father’s records. It makes a similar contention regarding references to the applicant’s father as contained in his mother’s records. The applicant does not accept the HSE’s position. In this context, he gives an example of pages, which he believes comprise a letter sent by an HSE official whom he says tried to unlawfully gain access to his private medical information.
When inviting the HSE’s submission, I informed it that the relevant excerpts are in records/files that are covered by the applicant’s requests, and that they must be considered under the FOI Act’s exemptions. The HSE’s submission does not address the issue, other than to reiterate its position on the scope of the requests.
Mindful of section 25(3), I am satisfied that the requested Safeguarding and Protection and Older People’s Services records primarily concern the applicant’s father or mother, as appropriate. It is these records that are the subject of the applicant’s requests, and I am satisfied that all details therein are covered by those requests. Whether such details are exempt from release is another matter. As I noted above, the applicant believes that certain pages comprise a letter sent by an HSE official. While I cannot disclose the content of the pages concerned, they are not the record that the applicant believes them to be.
Having regard to the contents of the records at issue, I deem it appropriate to consider the application of section 37(1) of the FOI Act to all of the records.
Section 37(1) – the exemption
Section 37(1) 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).
Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered as personal information, including (i) information relating to the medical history of the individual and (xiv) the views or opinions of any other person about the individual. Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met. In considering whether information meets the definition of personal information, it is not relevant whether a requester is aware of any of the information at issue, including from any release by the FOI body of related personal information. Neither is it relevant whether the requester may have provided any of the information at issue to the FOI body.
The applicant’s submissions
While I have not received any reply to my letter of 27 June 2025, I confirm that I have had regard to the arguments made by the applicant at earlier stages of the FOI process. His arguments are detailed and lengthy and it is not practicable to set out them out in full.
In summary, and while the applicant has made no specific arguments to the effect that section 37 does not apply, he takes issue with the HSE’s care of his parents, including the legality of its decision to take them into and keep them in respite and nursing home care, and related matters. He alleges that agents of the HSE were complicit. He says that Data Protection laws caused an obstacle in his attempts to hold persons to account. He says that his own right to due process and fair procedures was not upheld. He says that his personal information was disclosed, and outlines why he believes that the HSE did not want to review his complaint. He says that the HSE sought to use his personal medical information against him and was dishonest in assuring him that his information had not been disclosed.
The applicant contends that the HSE is seeking to protect its reputation, and those of certain staff, by refusing to grant access to the records sought. He says that the records should be disclosed to expose the true extent of what he says is the HSE’s wrongdoing in relation to his parents and family.
The applicant describes, inter alia, his father’s health and his inability to understand and communicate his preferences regarding medical treatments; circumstances leading to the issue to his father of a driving licence, particularly the issue of a fitness to drive certificate; his father’s account of a particular medical examination; events that he says took place during various other medical appointments; medical diagnoses; medical treatments that were advised and provided; how these treatments impacted on his father and other family members; the actions of other parties, including the person whom he says assumed the unofficial role of next of kin; and differences of opinion between family members as to where the applicant’s father would be best cared for. He contends that family members were duped into taking certain steps.
The applicant describes his father’s discharge from hospital in late 2018 and says that the HSE should have sought the assistance of the Courts in making appropriate care arrangements. He says that he raised concerns about the matter and that the HSE tried to make him into a scapegoat and downplay the significance of its own decision.
The applicant describes circumstances leading to the HSE’s decision to admit his father and his mother to respite and ultimately nursing home care; the sharing of his parents’ personal information; how he says his mother was prevented from leaving the nursing home; communications that he says he had with various nursing home staff and others; and how he was hindered from trying to vindicate his mother’s rights. He says that his mother did not consent to various matters or sign required paperwork, and was not allowed at meetings or given copies of relevant documentation.
The applicant describes matters relating to the wardship proceedings commenced by the HSE, including why the applicant believes there were alleged delays. He outlines the outcome of his contacts with various regulatory and other bodies. He says that his complaint about an individual to a regulatory body resulted in legal advice being given to the HSE to be reassessed. He says that, nonetheless, incorrect information continued to be provided to third parties, including the High Court.
The applicant also describes matters relating to his parent’s deaths including the details in their death certificates; various statements made by HSE staff and others that the applicant says were false and criminally misleading; and discussions that the applicant had with the coroner and with HIQA which he says confirm the criminal/civil nature of his concerns.
The applicant provides copies of various records, which he says comprise evidence of carelessness and dishonesty by certain HSE staff; of the HSE not following values, principles, procedures and court rulings and not complying with the law; and of dishonesty, corruption, abuse and cover-up.
The applicant says that he wants the records to assist with Garda investigations and to appeal to the Ministers of Health and Justice in relation to the matter. He says that his solicitor needs the records in order to advise him. He says that disclosure of the records would be crucial to identifying and ensuring the accountability of those who were involved in or knew about his parents’ placements, and other related matters that he says are of an illegal nature. He explains why he disputes the veracity of certain records (which, as noted already, is not a matter that this review can consider).
The HSE’s submissions
I understand the HSE’s position to be that all of the remaining records contain personal information relating to the applicant’s parents, and that some include personal information relating to various third parties, including the applicant.
Analysis
While the applicant takes issue with the actions of the HSE and others in respect of his late parents, and while he also contends that his own rights have been interfered with, such issues are not relevant when considering whether information is exempt under section 37(1) of the FOI Act.
Some of the withheld details may be described as broadly similar to other details that the HSE has released. In relation to some of the remaining details, I note that certain information about the applicant’s mother, which the HSE withheld from records in his father’s files on the basis that they were not covered by the scope of the request for such material, may have been released from records in his mother’s files, and vice versa. However, such disclosure by the HSE does not mean that the details at issue are not personal information.
I am satisfied that the withheld records and parts of records primarily relate to the medical and other care given to the applicant’s parents, including the steps taken by the HSE arising from its safeguarding concerns. I am satisfied that, primarily, the details comprise the personal information of the applicant’s parents.
In addition, I am satisfied that some of the withheld records and parts of records also refer or relate to other identifiable individuals (third parties), including the applicant. However, I am satisfied that such third-party personal information is inextricably linked to the applicant’s parents’ personal information.
The applicant may argue that he is entitled to any details that refer or relate to him. However, the provisions of section 37(7) of the FOI Act are relevant. Section 37(7) provides that, notwithstanding section 37(2)(a) (see below), access to a record shall be refused where access to it 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.
Section 37(2) - exceptions
Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. The HSE says that none of the circumstances arises in this case. The applicant has not made any arguments in relation to section 37(2).
In particular, section 37(2)(a) provides for the grant of access to personal information relating to the requester. However, I am satisfied that no further information falls for release further to this provision of the FOI Act. I have already outlined the provisions of section 37(7). Furthermore, while I am satisfied that some details refer or relate to the applicant, I do not consider that such personal information relating to the applicant can be separated from that of other individuals.
I am satisfied that the remaining circumstances set out in section 37(2) do not arise.
Section 37(5)(a) – the public interest
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 have no reason to consider that section 37(5)(b) applies, and the applicant has made no arguments to this effect.
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 an 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 the Regulations made under section 37(8), which I will deal with separately) FOI is not about granting access to information to particular individuals only. Furthermore, 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 had regard to the Supreme Court judgment in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (the eNet judgment). In relevant part, 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’s submissions
I have set out the applicant’s reasons for making his requests. I have also set out his arguments as to why the records should be released, including his views on the HSE’s performance of its functions regarding the care of his parents and his view that HIQA and the Coroner’s Office have confirmed criminality.
It should be noted that section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse a request, any reason that a requester gives for the request shall be disregarded. This means that in this case, I cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.
However, it seems to me that the applicant’s motives for making his requests, and his arguments as to why the records should be released, are all reflected in his further arguments on the public interest. He says that it is in the public interest to (i) expose errors, unfairness, deception, negligence, wrongdoing and cover-up by an FOI body; (ii) ensure that an FOI body did not infringe upon the basic human rights of vulnerable persons; (iii) ensure that deprivations of liberty and medical treatment of vulnerable persons by an FOI body were in accordance with the law; and (iv) expose criminality, abuse, fraud, obstruction of justice and misappropriation of funds.
The HSE’s submissions
To summarise the HSE’s submissions in all four cases, it contends that the public interest weighs in favour of withholding the details. It says that it considered the public interests in members of the public exercising their rights under FOI and in ensuring openness and accountability. It says that it also took account of the public interests in protecting the right to privacy of deceased persons, and in protecting the confidential, sensitive and personal information of third parties generally. It refers also to the public interest in ensuring that members of the public are able to communicate with an FOI body in confidence regarding personal and sensitive matters and allay concerns without fear of disclosure and identification.
The HSE says that the details are private and personal in nature. It notes that release under FOI is akin to release to the world at large. It says that third party privacy rights are very strong and that it has a duty to maintain the confidentiality of personal information.
The HSE says that the public interest arguments put forward by the applicant in favour of release of the records (essentially, that they will disclose wrongdoing) are strong on the face of it. However, it says that the content of the records does not contain any evidence or substance to support the applicant’s claims. It gives further details that I cannot disclose due to section 25(3). It says that, in the circumstances, the applicant’s public interest arguments are entitled to lesser weight. In essence, it also argues that the released records/parts of records enable sufficient insight into the decisions made regarding the applicant’s parents.
The HSE’s disclosure of other details covered by the applicant’s request does not, of itself, require me to direct the disclosure of the remaining details in the public interest.
I note the HSE’s position that there is a public interest in members of the public exercising their rights under FOI. I have already referred to the comments of the Supreme Court in the eNet judgment regarding the public interest. I also note that while section 11(1) of the FOI Act provides for the right of access to records, section 11(7) provides that “[n]othing in this section shall be construed as applying the right of access to an exempt record (a) where the exemption is mandatory, or (b) where the exemption operates by virtue of the exercise of a discretion that requires the weighing of the public interest, if the factors in favour of refusal outweigh those in favour of release.” Overall, it seems to me that the FOI Act itself reflects a public interest in protecting exempt information from being disclosed to the world at large. In my view, there would have to be something more than any general public interest that may be reflected in the right of access in order to tip the balance in favour of disclosure of the details at issue in this case.
The applicant contends that the records disclose wrongdoing on the part of the HSE. He says that the Coroner and HIQA have confirmed the criminal/civil nature of his concerns. In essence, he argues that such matters add weight to the public interest in favour of disclosure of the records. On the other hand, the HSE contends that the records do not support the applicant’s claims, and that his arguments in favour of release attract less weight accordingly.
I do not consider the applicant’s communications with HIQA and the Coroner’s Office to have the significance that he believes them to have. In my view, they amount to explanations that it is for An Garda Síochána to investigate his concerns, for instance, rather than findings of criminality. Neither has this Office any role in examining the HSE’s performance of its functions, including its decisions or actions regarding the care of the applicant’s parents. Nonetheless, I am satisfied that there is a public interest in enabling scrutiny of the HSE’s performance of its functions in relation to the applicant’s parents, and in enabling the pursuit of any accountability that may be necessary in this regard.
The applicant has already been given access to various records and parts of records concerning such matters. Such disclosure serves the relevant public interests to a significant extent. Nonetheless, I accept that disclosure of the details at issue will provide some further insight into the HSE’s performance of its functions in relation to the applicant’s parents. I consider that there is a reasonable weight to the public interest in their disclosure.
The applicant may also argue that, in all of the circumstances, there is a public interest in disclosing information concerning the actions or involvement of other parties (i.e. parties who are not public servants or contractors) in matters relating to the care of his parents. However, it is important to note this Office’s view that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations. In general terms, it was not designed as a means by which the actions of third-party individuals were to be opened up to scrutiny.
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). Furthermore, unlike other public interest tests provided for in the
FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. In addition, the 37(8) Regulations recognise a public interest in maintaining the confidentiality of personal information relating to a deceased individual.
The statutory privacy rights afforded by the FOI Act relating to personal information, including that of a deceased person, will be set aside by this Office only where the public interest served by granting the request (and breaching those rights) outweighs the public interest in protecting privacy.
As already explained, the details at issue primarily comprise the personal information of the applicant’s late parents. I am satisfied that such information is of an inherently sensitive and private nature. Having regard to the fact that release of records under FOI effectively amounts to their disclosure to the world at large, it seems to me that there is a heavy weight to the public interest in maintaining the confidentiality of personal information relating to deceased individuals.
I have noted that the records also contain other third-party personal information. Again, I consider this information to be of a very private and sensitive nature, such that its disclosure to the world at large would result in significant breaches of privacy rights. I am satisfied that there is also a heavy weight to the public interest in protecting against such breaches.
Having considered the matter, on balance, I do not consider that the public interest that the access to the remaining records should be granted outweighs the rights to privacy of the individuals to whom the withheld details relate. I find that the applicant is not entitled to the withheld details further to the provisions of section 37(5)(a) of the FOI Act.
Section 37(8) – Regulations providing for disclosure to next of kin
Section 37(8) of the Act provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform 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 Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. No. 218 of 2016), as amended, are the relevant Regulations in this case (the Regulations). Amongst other things, the Regulations provide that, notwithstanding section 37(1) (and subject to the other provisions of the FOI Act), a request for records which involves the disclosure of personal information of a deceased individual shall be granted where the requester is the spouse or the next of kin of the individual and the public body considers that, 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.
Essentially, the HSE has found that it is in accordance with the Regulations to provide the applicant with some of his parents’ personal information. Regardless, this does not mean that I cannot consider his entitlement to the remaining details under the Regulations.
I have no reason not to accept that the applicant is his parents’ next of kin for the purposes of the Regulations. However, I intend to examine 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 access to the remaining details at issue.
Ministerial Guidance
The Minister for Public Expenditure and Reform 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 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 obtain the information they seek without accessing the records of the deceased
• 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 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 family or carers, along with the effect of disclosure on the reputation of the deceased and the purpose of the disclosure.
It is apparent from the 2016 Regulations, which refer to “all the circumstances”, and from the factors specified in the Guidance that circumstances and relevant matters cannot be excluded solely on the basis that they are not public interest factors.
The parties’ submissions
As outlined earlier, I have received no comment from the applicant in relation to my consideration of the Regulations. I also invited the HSE’s views on the matter. It says that it has no comments to make.
I will firstly deal with an error in my letter to the applicant of 27 June. I noted that disclosure of the details at issue would effectively place his parents’ personal information in the public domain, and said that I considered the public interest in maintaining the confidentiality of personal information relating to deceased individuals to be of a heavy weight.
As records released pursuant to the FOI Act are released without any restriction as to how they may be used, such release is regarded, in effect, as release to the world at large. This is true of all records released under FOI regardless of the identity of the requester, including where the requester seeks his/her own personal information. Nevertheless, the fact remains that the Oireachtas saw fit to determine that access to the records of deceased persons shall be granted to certain categories of requesters, provided the requirements of the 2016 Regulations have been met.
Accordingly, it was not appropriate for me to suggest to the applicant that the fact that the release of records under FOI is essentially release to the world at large provides a reasonable ground for refusing access to a category of requester that the Oireachtas has determined should be granted access. However, this does not, of itself, mean that I am required to direct the HSE to grant access to the remaining records.
I accept that the applicant was his parents’ carer until the HSE admitted them to care placements. I also note his position that he gave his parents appropriate care, that the HSE did not need to take the steps it took, and that his mother, in particular, did not want to remain in a care setting. I note that he wants to obtain information about what he says is the HSE’s wrongdoing in relation to his parents and family, and to gain as full an understanding as possible into the HSE’s performance of its functions in respect of his parents. The applicant may also argue that, in such circumstances, his parents would have consented to the release of their records to him.
However, I am satisfied that the details at issue are of an inherently private, sensitive and confidential nature in relation to the applicant’s parents. Noting the subject matter of some records in particular and other relevant circumstances, which I cannot disclose due to the requirements of section 25(3), it seems to me that their disclosure could damage the good name and character of one parent. Furthermore, the HSE identified safeguarding issues in relation to the applicant’s care of his parents, in response to which it took various steps that it considered to be in their best interests. In such circumstances, it is not appropriate for me to consider that the applicant’s parents would have consented to the release of their records to him when living.
I have already summarised the applicant’s public interest arguments, which I found to carry reasonable weight. However, as also outlined, there is a heavy weight to the public interest in maintaining the confidentiality of personal information relating to deceased individuals.
I am satisfied that, 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 refusing to grant access to the remaining records in the four cases covered by this decision.
In circumstances where I have found that the applicant is not entitled to the remainder of his parents’ personal information, there is no need for me to consider whether the HSE was justified in withholding individual such records and parts of records under the various substantive provisions on which it has relied. Neither do I see a reason to examine the adequacy of the HSE’s searches for the applicant’s parents’ records.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision. I find that the applicant is not entitled to the remainder of his late parents’ information further to the Regulations issued under section 37(8) 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.
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Anne Lyons
Investigator