Ms Y and Incorporated Orthopaedic Hospital of Ireland

Background
Scope of the Review
Preliminary Matters
Analysis and Findings
Decision
Right of Appeal

Whether the Hospital was justified in its decision to grant only partial access to the medical records of the applicant's deceased mother under section 37 of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

17 August 2017

Background

The applicant submitted a request to the Hospital on 24 October 2016 for her deceased mother's medical records, including anything regarding the applicant herself. On 5 January 2017, the Hospital informed the applicant that it had decided to part-grant her request. It redacted certain information from a number of the records under section 35 and section 37 of the FOI Act.

On 11 January 2017, the applicant sought an internal review of that decision following which the Hospital affirmed its original decision. On 7 February 2017, the applicant sought a review by this Office of the Hospital's decision.

During the course of the review, Ms McCrory of this Office drew the Hospital's attention to the existence of Regulations that provide for a right of access to the records of deceased persons in certain circumstances. The Hospital agreed to review the redactions made, following which it issued a revised set of records to the applicant on 24 May 2017 with fewer redactions than previously made. It argued that the remaining redactions were exempt from release under section 37 of the Act.

On 16 May 2017, Ms McCrory informed the applicant of her view that the Hospital was justified in refusing access to the majority of the remaining redactions under section 37 of the FOI Act. The applicant made a submission on 8 June 2017 in which she indicated that she was not satisfied with many of the remaining redactions.

Accordingly, I consider it appropriate to conclude this review by issuing a binding decision on the matter. In carrying out my review, I have had regard to the correspondence between the Hospital and the applicant as set out above and to the various communications between this Office and both the applicant and the Hospital on the matter. I have also had regard to the contents of the records at issue. In referring to the records, I have adopted the page numbering system used by the Hospital in the batch of records that were released to the applicant in May 2017.

Scope of the Review

This review is concerned solely with the question of whether the Hospital was justified in redacting certain information from pages 1, 3, 19, 37, 41, 46, 49, 53, 60, 61, 63, 69, 70, 72, 77 to 79, 131, 133 to 135, 143, 147, 206, 207, 209 to 212, 215, 216, 219, 220, 223 to 235, 237 to 242, 244 to 246, 248, 250, 251, 253 to 255, 257, 258, 262, 263, 265, 266, 269 to 271, 273, 275, 281 to 285, 289, 290, 295 to 298, 300 to 302, 304 to 306, 308, 311 and 314 under section 37 of the FOI Act. I note that the body of the email that has been redacted from record 262 has been released to the applicant in record 269. Accordingly, I do not propose to consider this redaction.

Preliminary Matters

Before I address the substantive issues arising in this case, I wish to make a number of preliminary points. It is important to note at the outset that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Its sole function in this case is to determine whether the Hospital was justified, in accordance with the provisions of the FOI Act, in redacting certain information from the records at issue.

Secondly, section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Hospital of satisfying this Office that its decision to redact certain information from the records at issue was justified.

Thirdly, while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the redacted information and of the reasons for my decision is somewhat limited.

Finally, it should also be noted that the courts have taken the view that, under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large.

Analysis and Findings

The records at issue in this case are the medical records of the applicant's mother. For the avoidance of doubt, I find that all of the redactions comprise personal information relating to various individuals. The redactions at issue fall into a number of categories, as follows:

1. personal information relating solely to one or more individuals other than the applicant or her mother,

2. joint personal information relating to the applicant's mother and one or more individuals other than the applicant,

3. joint personal information relating to the applicant's mother, the applicant and one or more other individuals,

4. personal information relating to solely to the applicant's mother, and

5. joint personal information relating to the applicant and her mother.

The FOI legislation concerning the release of records such as those at issue in this case is complex. Section 37 provides for the protection of personal information relating to third parties. It does not apply where the personal information relates solely to the requester. Section 37(1) of the FOI Act provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual other than the requester, including personal information relating to a deceased individual.

Furthermore, section 37(7) provides for the mandatory refusal of a request where access to the record sought would, in addition to disclosing personal information relating to the requester, disclose personal information relating to individuals other than the requester, commonly known as joint personal information. In other words, even if a record contains personal information relating to the requester, it remains exempt from release if disclosure would also involve the disclosure of personal information relating to another individual.

The exemptions contained in sections 37(1) and 37(7) are not absolute as they are both subject to other provisions of section 37, which I will discuss further below.

It is clear from my description of the categories as set out above that disclosure of any of the redactions falling into categories 1, 2, and 3 would involve the disclosure of personal information relating to one or more individuals other than the requester or her mother. As such, I find that sections 37(1) and/or 37(7) apply to those redactions. I find that all of the redactions made by the Hospital fall within categories 1 to 3 apart from the following redactions that, in my view, fall into categories 4 and 5:

Page No. Redactions

49: All

61: All apart from final three words

69: Redacted text from "Will need ..." onwards

133: All

134: All

135: All

147: Third redaction

206: All

207: All

210: Paragraph following " ... looking after meals at wends", apart from final three words of second sentence; Sentences three, four and five in paragraph following "... mood was very low"

211: Second redaction

224: First sentence of point 1, commencing "Prior to admission..."

228: Entry dated 12/6/14

230: First, fourth, fifth, sixth, seventh and eighth sentences

231: First bullet point, apart from final sentence

232: Point 4

240: All except sentence following "... staying with her" and sentence following "... then returning home"

241: Final redaction

273: Names redacted from email sent on 15 July 2014 at 09:40

300: First paragraph

311: Paragraph following "During the meeting:"

I will now consider whether any of the other relevant provisions in section 37 might serve to disapply the exemption in section 37(1) and/or (7) to the redactions falling into categories 1 to 3. Section 37(2) sets out certain circumstances in which sections 37(1) and 37(7) do not apply. I am satisfied that none of those circumstances arise in this case. Section 37(5) of the FOI Act provides that a request that would fall to be refused under sections 37(1) and 37(7) 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 information would be to the benefit of the person to whom the information relates.

I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

In relation to the issue of the public interest, it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

The FOI Act itself recognises the public interest in ensuring the transparency and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will 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.

In my view, the public interest in ensuring transparency and accountability has been met to some degree by the release of vast majority of the medical records of the applicant's mother. On the other hand, I consider that release of the redacted information at issue, disclosure of which would involve the disclosure of personal information relating to individuals other than the applicant or her mother, would involve a significant breach of the individuals' privacy rights. I am particularly cognisant of the fact that release under FOI is, in effect, release to the world at large. In my view, the public interest in granting access to the redactions at issue does not, on balance, outweigh the privacy rights of the individuals concerned and I find that section 37(5)(a) does not apply.

I find, therefore, that the Hospital was justified in applying redactions to the records, apart from the redactions I have identified in the table above.

Category 4 and 5 Redactions

As I have explained above, categories 4 and 5 comprise either personal information relating solely to the applicant's mother or joint personal information relating to the applicant and her mother. Section 37(8)(b) of the FOI Act provides that the Minister may provide by regulations for the grant of a request where the individual to whom the record 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). Among other things, the Regulations provide that, notwithstanding section 37(1), 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.

It is not disputed that the applicant is the daughter of the deceased, and is considered to be the next of kin for the purposes of the Regulations. The issue to be considered, therefore, 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 request.

Pursuant to section 48(1) of the FOI Act, the Minister for Public Expenditure and Reform published Guidance Notes in September 2016 concerning access to records relating to deceased persons. The Guidance Notes suggest that each case must be judged on its own merits and identifies certain factors that should be considered, 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 when living,
whether the deceased 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 the relationship prior to the death of the deceased,
the nature of the records to be released,
whether the requester can obtain the information sought without accessing the records of the deceased, and
any other circumstances relevant to the request as set out by the requester.

In relation to medical records, the Guidance Notes suggest that due regard should be had to the confidentiality of medical records in accordance with the Irish Medical Council Guide to Ethical Conduct and Behaviour and that records containing joint personal information of both the requester and the deceased might, subject to other considerations, fall to be released.

It is plain from the Regulations, which refer to "all the circumstances", and from the factors specified in the Guidance Notes published by the Minister, that such circumstances and matters, where relevant, cannot be excluded solely on the basis that they are not public interest factors.

While I am cognisant of the requirement of section 25(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record, I can say that in its submission of 10 May 2017 to this Office, the Hospital stated that it took the following into consideration in its decision to withhold certain information:

the confidentiality of the particular personal information withheld,
the absence of valid evidence that the deceased would have consented to the release of the records to the applicant when living, and
the fact that none of the redactions relate to information regarding the medical history of the deceased or, in any event, any medical information that show a hereditary medical condition that could have a bearing on the health of the applicant.

I should say at this stage that some of the Hospital's concerns are more appropriate to much of the information that I have already found to be exempt. Therefore, I have considered the Hospital's submission only in so far as it relates to the information falling within categories 4 and 5, as described above. On the matter of confidentiality of medical records, I note that the Irish Medical Council Guide to Ethical Conduct and Behaviour itself acknowledges that there are circumstances where release may be appropriate. Indeed, it acknowledges that information may be disclosed with the individual's consent, and that this consent may extend to disclosure after death. The Guide also suggests that regard might be had to certain factors if it is unclear whether the patient consented to disclosure of information after their death, including how disclosure of the information might benefit or cause distress to the deceased's family or carers, the effect of disclosure on the reputation of the deceased and the purpose of the disclosure.

While the Hospital has argued that the applicant has not presented evidence that her mother would have consented to the release of the redacted information at issue when living, the Regulations do not provide that such evidence must be present nor does the Guidance Notes suggest that the onus is on the applicant to provide same. Having regard to the nature of the information at issue and to the nature of the relationship between the applicant and her mother as is apparent from the entirety of the records within scope, I see no reason to doubt that the applicant's mother would have had any concerns about release of the information to the applicant.

I also accept that none of the redactions relate to a medical issue that might have a bearing on the health of the applicant. However, this, of itself, is not a ground for refusing access. At best, it serves to lessen the weight to be afforded in the consideration of whether the request should be granted.

I have carefully considered the provisions of the 2016 Regulations, the factors identified in the Guidance Notes and I have had regard to the public interest in openness, transparency and accountability as regards the care and treatment of the deceased. I have also had regard to the fact that some of the redacted information at issue relates, in part at least, to the applicant. I am satisfied that in all the circumstances of this particular case, the public interest would, on balance, be better served by granting access to the information in question.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Hospital in this case. I direct release of the following information: