Cinneadh
Ms. A and the Health Service Executive (HSE)
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-149584-Z0Z1Q2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-149584-Z0Z1Q2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the HSE was justified in refusing access, under section 37(1) of the FOI Act, to medical records relating to the applicant’s great grandmother
17 June 2025
The applicant submitted a request to the HSE for the medical records of her great grandmother relating to the time she spent in a specified psychiatric hospital from 1897 to 1919. In a decision dated 8 March 2024, the HSE refused the request under section 15(1)(i) of the FOI Act, which provides for the refusal of a request where the request relates to records already released, either to the same or a previous requester where the records are available to the requester concerned. It appears that the HSE had previously released certain records relating to the deceased to another family member. The applicant sought an internal review of that decision on 14 March 2024. While she acknowledged that certain records had been released, she said the records released had significant gaps and she suggested that additional relevant records should exist.
On 8 April 2024, the HSE issued its internal review decision wherein it noted that section 15(1)(i) could apply only to records to which access had been granted in full. It noted that a number of pages of records had been partially redacted in the course of the previous release of records. It granted access to eight heavily redacted records with those redactions made under section 37(1) of the FOI Act. It said it also considered whether a right of access existed pursuant to the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016)), as amended. It said it considered the records to be of a highly personal and sensitive nature and that the release of same would damage the good name and character of the deceased. It said it did not believe that the deceased would have consented to the release of these records. The HSE also explained the form of record keeping used to record the information of patients at the time. It explained that patient information was recorded in case books, which contained admission forms and continuation sheets per patient. It said that the applicant’s great grandmother’s records were given a specific admission number, and that other numbers noted relate to different patients. It acknowledged that the gaps in the record keeping identified by the applicant which it said were down to the record keeping practices at the time and that it was not unusual to have large gaps in between entries in case books. On 6 June 2024, the applicant applied to this Office for a review of the HSE’s decision.
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 to the applicant’s comments in her application for review. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
In her application for review, the applicant noted that the HSE was no longer applying section 15, and that she was seeking the redacted information to be released as she considered the redactions applied to be extensive. Although, the applicant believes that at one point there may have been further records which existed in relation to her great grandmother, she has stated that she is of the view due to information she has received over the years, that these records were likely lost. The applicant was provided with an opportunity to set out why she believed that further records may have existed however no response was received.
Accordingly, I am satisfied that this review is concerned solely with whether the HSE was justified in redacting, under section 37(1) of the FOI Act, certain information from the eight pages of records it released concerning the applicant’s great grandmother.
I wish to note that 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. Therefore, although I am obliged to give reasons for my decision, the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.
I also wish to note that section 18 of the FOI Act provides that, if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
The records
The records at issue comprise an entry in an Index Ledger and seven pages of a casebook from the nineteenth century related to the applicant’s great grandmother over 20 years of a stay in a psychiatric facility. It contains details of sensitive medical information recorded from her admission to the hospital up until she passed away in situ. The vast majority of the information redacted essentially comprises observations recorded by the medical staff of the deceased’s mental and physical state on various dates over the twenty-year period.
Section 37(1)
Section 37(1) of the FOI Act provides for the mandatory refusal of a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Section 2 of the 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 the 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 definition provided for under section 2, comprises personal information, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual, and (xiv) the views or opinions of another person about the individual.
Having regard to the definition of personal information and to the nature of the information redacted from the records at issue, I am satisfied that its release would involve the disclosure of personal information relating to the applicant’s great grandmother. While I am restricted by the provisions of section 25(3) from providing more details, I can say that I am also satisfied that the release of some of the information at issue would also involve the disclosure of personal information relating to individuals other than the applicant’s great grandmother. I find that section 37(1) applies to all of the redacted information. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37.
Section 37(2)
Section 37(2) of the FOI Act provides that section 37(1) does not apply if;
(a) subject to subsection (3), the information concerned relates to the requester concerned,
(b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester,
(c) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
(d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or
(e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual,
No argument has been made that any of the circumstances in section 37(2) apply in this case and I am satisfied that they do not.
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.
The applicant argued that both sections apply in this case. In relation to the applicability of section 37(5)(a), the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates. Before I consider the applicability of that section, 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) (which I consider below), FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the 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 in The Minister for Communications, Energy and Natural Resources and the Information Commissioner and 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. I have also had 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] 1 I.R. 729, [2011] IESC 26) (‘the Rotunda case’). In this regard, I note that a public interest should be distinguished from a private interest.
Much of the applicant’s submission in support of her request for access is directly relevant to her argument that she has a right of access to the records at issue as the next of kin of the deceased and I will address those arguments when considering the applicability of section 37(8). As I have outlined above, 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 individual concerned. Nevertheless, the applicant’s arguments also overlap with a more general argument that the public interest favours release of the records concerned. Among other things, she said the Irish Constitution does not contain a right to privacy but that there is a general legal recognition of a reasonable expectation of reasonable privacy. She noted, however, that GDPR does not apply to deceased individuals. She argued that the cloak of secrecy around mental health admissions is such that release of records to the next of kin can only serve a public interest, and “vindicate the good name and character of the deceased” rather than damage it. She argued that releasing the records would bring clarity and remove stigma surrounding the deceased’s tragic life and death. She said the State denied her relative the right to live in the community and her good name by committing her to an institution in which she died.
The HSE said that while the public interest may be served by promoting openness and transparency in how mental health services were delivered in the late 1800’s and early 1900’s, it believes that this type of information is already well documented in the public domain. It said it is cognisant of the judgment of the Supreme Court in the Enet case, that the 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”. It said it considered the fact that the records in question are over 100 years old and are therefore not reflective of current Mental Health Services. It said it considers the interest of the applicant to be a private interest to her and that it did not find a cogent and fact-based reason to tip the balance in favour of disclosure. It said it also considered that release of the records is release to the world at large with no constraint on the use of released information.
I accept that there is a public interest in members of the public knowing how mental health services were delivered during the period in question. The fact that similar information is already well documented in the public domain does not mean that there should be no further transparency. 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 while the Constitution does not expressly identify the right to privacy as a constitutional personal right, the right to privacy does, indeed, have 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.
The records at issue are of an inherently private and sensitive nature, regardless of their age. Having regard to their inherently private nature and to the fact that the release of records under section 37(5)(a) must be regarded, in effect, as release to the world at large, I am quite satisfied that there is no sufficiently specific, cogent and fact-based reason to find, on balance, that the public interest in releasing them outweighs the right to privacy of the individuals to whom the information relates. I find that section 37(5)(a) applies.
The applicant also argued that the release of the records would benefit the deceased and that section 37(5)(b) applies. She said the cloak of secrecy around mental health admissions is such that release of records to the next of kin can only serve a public interest, and “vindicate the good name and character of the deceased” rather than damage it. She said that continued refusal to release records of long deceased to next of kin perpetuates stigma and perpetuates impairment of “the good name and character” of those who were committed to such institutions. She contends that on this basis, granting the request would benefit the deceased chiefly by removing the stigma surrounding her tragic life and death.
Although the HSE did not make specific arguments in relation to the applicability of section 37(5)(b), it has made submissions on its view that the release of the records would be damaging to the applicant’s late grandmother’s good name and reputation. While I am constrained by section 25(3) from providing more detail on why the HSE believe this to be the case, I can confirm that I have carefully considered its arguments. Having regard to the nature and contents of the records at issue, and having regard to the fact that the release of records is, in effect, release to the world at large, I am satisfied that section 37(5)(b) does not apply in this case.
Section 37(8)
Section 37(8) of the FOI Act provides that, notwithstanding subsection (1), the Minister for Public Expenditure, NDP 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 is deceased 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 (S.I. 218 of 2016)), as amended. The 2016 Regulations provide for the grant of a request for the records of a deceased individual and, 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 important to note that the Regulations do not provide for the release to the next of kin of the personal information of any party other than the relevant deceased person. Neither do they provide for the release to such a requester of the personal information of the deceased person where that is joined to the personal information of any other party. Therefore, I have considered section 37(8) and the 2016 Regulations only in relation to the redacted that relates solely to the deceased.
The HSE does not dispute that the applicant is the next of kin for the purposes of the Regulations. However, it is important to note that the fact the applicant is the next of kin of the deceased does not mean that she is automatically entitled to access the record. 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 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. 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 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;
Furthermore, in considering the nature of 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 in 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 the disclosure of information after their death, it should be considered how disclosure of that information might benefit or cause distress to the deceased’s family or carers, along with the effect of disclosure on the reputation of the deceased and the purpose of the disclosure.
The applicant argued that the deceased has been dead for over a century, a time-lapse she said should mean that full release of records to the next of kin is appropriate. She said it was prejudicial of the decision maker to state that release would damage the good name and character of the deceased, because the records are “of a highly personal and sensitive nature.” She said all medical records are of a highly personal and sensitive nature and that these are commonly released under FOI. She said the decision maker has evidenced no basis for stating that this case is different to other medical records. She added that the decision maker has evidenced no basis for saying that they do not believe that the deceased would have consented to the release of the records, and that it is inconceivable that the decision maker would know anything of the wishes of the deceased. She argued that the cloak of secrecy around mental health admissions is such that release of records to the next of kin can only serve a public interest, and “vindicate the good name and character of the deceased” rather than damage it. She said that continued refusal to release records of long deceased to next of kin perpetuates stigma and perpetuates impairment of “the good name and character” of those who were committed to such institutions. She said that on this basis, releasing the records would bring clarity and remove stigma surrounding the deceased’s tragic life and death. Finally, she adds that the State denied her relative the right to live in the community and her good name by committing her to an institution in which she died.
The HSE said it does not accept the argument that the fact that the records in question are over 100 years old means that they should not be subject to the same application of confidentiality as more recent records. It said the FOI Act does not account for the age of records or a diminished use of an exemption as a result of the age of records. It said the records detail inherently private and sensitive information, namely the description of the deceased’s mental illness over a period of 21 years. It said it does not consider that the deceased would have consented to the release of the records when living and it referenced specific extracts from the records that it considers to support that view. It said it believes that the release of the records would damage the good name and character of the deceased. It said that in coming to this opinion, it considered the change in language used to describe mental illness from the 1900s and the language used today. It referenced other extracts from the records which it considered to support it view that the release of the records would have been damaging to the character of a woman at that time.
I appreciate that the applicant does not have the benefit of considering the specific record extracts upon which the HSE based its opinion that the deceased would not have consented to the release of the records to the requester when living and that release would damage the good name and character of the deceased. Neither am I in a position to describe those extracts, having regard to the requirements of section 25(3) of the Act. I can say, however, that the extracts are of a very sensitive and inherently private nature. The 2016 Regulations and associated Guidance do not require certainty as to whether the deceased would have consented to the release of records when living or whether release would, indeed, damage the good name and character of the deceased. Having considered the relevant extracts, I consider that the HSE has drawn reasonable conclusions from those extracts. Those conclusions, are sufficient, in my view, for the HSE to have justified its decision 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 the request. I find, therefore, that section 37(8) does not serve to disapply section 37(1) in respect of the information in the records that relates solely to the applicant’s great grandmother.
In conclusion, therefore, I find that the HSE was justified in refusing access, under section 37(1) of the FOI Act, to the records at issue.
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 was justified in refusing access to the records concerned under section 37(1) of the FOI Act 2014
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