Case number: 040149

Case 040149. Request by a next of kin for access to medical records of deceased mother - personal information - section 28(1) - statutory interpretation - section 28(6)(b) and article 3(1)(b)(iii) of the FOI Act 1997 (section 28(6)) Regulations 1999 [SI No 47 of 1999] - classes of requester to whom a deceased person's records may be released - whether a duty of confidence is owed by the HSE - section 26(1)(b).

Case Summary

Facts

The requester sought access to the medical records of his late mother who had been a patient in a hospital under the control of the HSE. He and his sisters and brothers are the deceased's next of kin. The HSE refused access to the records on the basis that the information in them was personal to the deceased and protected from release under section 28 of the FOI Act.

Findings

The Commissioner found that the requester belongs to a class within the terms of section 28(6)(b) of the FOI Act and of article 3(1)(b)(iii) of the 1999 Regulations and that he is entitled to be granted access to his late mother's records. She further found that, as section 28(6)(b) provides for a process under which the personal and confidential information of a deceased person will be released to certain specified classes of persons, section 26(1)(b) does not apply to exempt the records in this case since it has not been established that release of the records to a next of kin would constitute a breach of a duty of confidence owed by the HSE.

She accepted that parts of the records which contained the personal information of third parties (other family members) were exempt from release under section 28(1) of the FOI Act.

The Commissioner commented that, in her Annual Report for 2005 and in other publications, she had drawn attention to the fact that her Office had, following a close analysis of the statutory provisions in this area, changed its approach to the records of deceased persons and suggested that the Regulations be revisited by the Minister for Finance as a matter of urgency. She set out the rationale for the revised position based on the literal interpretation of article 3(1)(b)(iii) of the 1999 Regulations. She considered that, in the case of deceased persons, there would appear to be no right of privacy. She recognised that there may be policy reasons for favouring an alternative construction of the regulations but she was not satisfied that this allows her to deviate from the rule of literal construction.

Date of Decision: 31.05.2007

Our Reference: 040149

31.05.2007

Mr X

Dear Mr X

I refer to your application under the Freedom of Information (FOI) Acts, 1997 and 2003 for a review of the decision of a former health board (the Board) on your FOI request dated 23 May 2003. The Board is now part of the Health Service Executive but for the purposes of this review will be referred to as "the Board".

I regret the delay which has arisen in dealing with your application and I appreciate that this has been frustrating for you. Unfortunately, due to the high volume of applications received in the first few years of operation of the FOI Act, this Office built up considerable arrears of work. The delay was compounded by the fact that difficult legal issues arise in this and other cases before me where the records of deceased persons are involved.

Background

In your request, you sought access to the medical records of your late mother, Mrs X who was a patient at Y Hospital (the Hospital). I understand that your late mother was a widow and that you and your sisters and brothers are her next of kin.

The decision of the Board, which was upheld at internal review, was to refuse your request on the grounds that section 28 of the FOI Act applied in order to protect from disclosure the personal information of your mother and of other individuals. We received your application, for a review of the Board's decision, on 20 April 2004.

In carrying out this review, I have had regard to -

  • your application for review and your contacts with my Office, including a telephone conversation between yourself and Elizabeth Dolan, Investigator on 28 September 2004;
  • correspondence between the Board and yourself in relation to this matter; and
  • the Board's submissions to my Office.

I have also examined the records at issue, copies of which were provided by the Board for the purposes of this review.

Scope of Review

As Ms Dolan explained in her letter of 29 September 2004, in which she set out her preliminary views on the relevant provisions of the FOI Acts, the only issue in this review is whether the FOI Acts entitle you to have access to your late mother's medical records. The records at issue are described in the schedule of records numbered 1 to 150 which was prepared by the Board and which my Office has made available to you.

Findings

Preliminary Matters

At the outset, I wish to draw attention to the provision at section 34(12)(b) of the FOI Act which provides that, in a review, "a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." The effect of this provision is to place the onus on the Board to displace the inherent assumption in the FOI Act that records held by public bodies will be released where sought under the Act.

Section 8(4) of the FOI Act provides, subject to the other provisions of the Act, that in deciding whether to grant or refuse a request any reason that the requester gives for the request has to be disregarded. The effect of this provision is that your motivation in making the request is not a consideration in deciding on the request.

The records comprise medical and nursing notes including medication records and test results. They include some details of contacts that the Hospital had with members of your family, including yourself, while your mother was a patient in the Hospital. These references to yourself and to other members of your family are, necessarily, linked to your mother's information and, therefore, cannot be dealt with on a "stand alone" basis. In the case of references to yourself, in those instances in which they do not refer also to others in your family, their release is dependent on whether or not your mother's information is releasable. In the case of references to other members of your family (including instances in which these references also include references to yourself), their release to you will not necessarily follow even if I find that you have an entitlement to your late mother's personal information.

Section 28 - Personal Information

The Board is relying on section 28(1) as the basis for its decision to refuse your request. Section 28(1) of the FOI Act provides that personal information (including that relating to a deceased individual) shall not be disclosed to a third party. However, the protection provided by section 28(1) is not absolute and a number of other provisions within section 28 provide, in certain circumstances, for the release of personal information to a third party. In the case of the personal information of a deceased person, there is a specific provision within section 28 which provides, in certain circumstances, for the release of such information to a third party. This provision is at section 28(6)(b) of the FOI Act and provides for the release of the records of a deceased person where the requester "is a member of a class specified" in regulations made by the Minister for Finance. The Minister has made regulations under section 28(6)(b) in the form of Statutory Instrument No. 47 of 1999, referred to hereafter as "the Regulations".

The Regulations provide that, notwithstanding section 28(1), a request shall be granted where the individual to whom the records relate is dead and the requester belongs to one of the classes specified. The specified classes include

" 3(1)(b)...

(iii) the spouse or a next of kin of the individual or such other person or persons as the head considers appropriate having regard to all the circumstances and to any relevant guidelines drawn up and published by the Minister".

I note that in your request to the Board, dated 23 May 2003, you designated yourself as "next-of-kin".

The Board's Position

In its submission, the Board appears to accept that you are "a next of kin" of the deceased but it points out that you are not the executor of your late mother's estate and that you have siblings. It suggests that any concerns you may have about your late mother's admission to hospital may best be resolved through discussion. The Board argues that patients expect and deserve confidentiality and privacy during their lives and that, following their death, it is incumbent on hospitals to maintain this privacy unless "clear and valid reasons exist" to release a deceased patient's records. It argues that, in Mrs X's case, no medical circumstances or conditions exist which would favour release of the records. The Board also says that the consultant involved spent many hours dealing with your concerns.

The Board's arguments, it must be noted, do not address the question of section 28(6)(b) and the related Regulations and how these provisions apply in the present case.

Interpretation

A close analysis of the relevant statutory provisions has caused me to re-think my Office's position on some aspects of the right of access to deceased persons' records. As a consequence the approach I am taking in this case, to the question of accessing the personal records of deceased persons, is new. This means that decisions of my Office on this issue in the past will have to be read, for precedent purposes, in the light of this development.

In my Annual Report for 2005 (published in April 2006) I drew attention to the fact that the present state of the law in this area is unsatisfactory. I suggested that dealing with a right of access to the personal records of deceased persons raises complex ethical and legal issues and that the Regulations in this area should be re-visited by the Minister for Finance (the Minister charged with the making of regulations under the FOI Act) as a matter of urgency. In the event, the Regulations continue in effect as of the date of my decision in this case.

On 15 December 2006, Ms. Dolan of my Office sent the Board a statement of preliminary views on this case and invited a response from the Board, should it so wish. Ms. Dolan drew the attention of the Board to the fact that my Office's position on accessing records of deceased persons, under the Regulations, had changed from that set out in earlier decisions of my Office. In particular, Ms. Dolan pointed out to the Board that its original submission to my Office may have been posited on an approach by my Office which, in the light of developments, no longer applied. While the Board indicated that it would be opposed to the release of the records, it failed to make any submission dealing with the substantive points set out in Ms. Dolan's preliminary views statement.

Although the Board has not made submissions disagreeing with my Office's interpretation of the relevant provisions, I believe it is appropriate that I set out the rationale for my approach.

Section 28(1) provides that:

"Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased individual)".

Clearly, section 28(1) protects the personal information of a deceased person but not in any absolute sense. This protection is expressed as being "[s]ubject to the provisions of this section". Furthermore, I take the view that whatever protection FOI affords to the records of deceased persons arises from within the FOI Act itself rather than from any general or Constitutional right to privacy. Section 28 has a number of exceptions to the underlying protection of personal information; and of these, the most relevant for present purposes is that contained at section 28(6)(b) and in the related Regulations. The issue for decision is whether you have a right of access to your late mother's records by virtue of section 28(6)(b) and, in particular, article 3(1)(b)(iii) of the Regulations. You will have a statutory right of access to your late mother's records where it is established that you belong to one or other of the specified classes:

"(iii) the spouse or a next of kin of the individual or such other person or persons as the head considers appropriate having regard to all the circumstances and to any relevant guidelines drawn up and published by the Minister".

The interpretation of this sub-article presents difficulties. The sub-article identifies three separate classes, namely, "spouse", "next of kin" and "other person or persons". The critical issue is whether the qualification "as the head considers appropriate having regard to all the circumstances and to any relevant guidelines drawn up and published by the Minister" applies to each of the three classes or only to the final class ("other person or persons").

My Office has always recognised that the most obvious reading of sub-paragraph (iii) is that the qualification applies only to the final of the three classes identified. However, in order to avoid outcomes which seemed to offend against the spirit of the FOI Act, my predecessor and I felt entitled in previous decisions to depart from the literal construction of the provision and to treat the qualification as applying to each of the three classes (including spouses and next of kin). This approach reflected a view that the Oireachtas would not have intended that there should be an unqualified right of access, to the personal records of a deceased person, simply by virtue of being a spouse or a next of kin. This would be particularly problematic where the term "next of kin" is not defined for the purposes of the Regulations and, in the absence of statutory definition, is capable of including a very wide range of relatives of the deceased person. It is notable that the reference in the Regulations is to "a next of kin" rather than to "the next of kin" which might be interpreted as a reference to the party regarded as the most immediate next of kin. {The term "spouse" is defined for the purposes of the Regulations and it, in fact, constitutes a much wider category than one would normally associate with that term; for example, it includes "a party to a marriage that has been dissolved" as well as "a man or woman who was not married to but cohabited as husband or wife, with the deceased individual".}

I now take the view that, as Information Commissioner, I have only very limited discretion to depart from what I understand to be the literal interpretation of the provision at article 3(1)(b)(iii) of the Regulations. I understand that the rule of literal construction requires that the interpretation of legislation is in accordance with the ordinary and natural meaning of the words and sentences. I am satisfied that the proper literal and grammatical interpretation of article 3(1)(b)(iii) of the Regulations is that the qualification or restriction ("having regard to all the circumstances and to any relevant guidelines drawn up and published by the Minister") applies only to the alternative immediately preceding the restrictive clause i.e. applies only to "such other person or persons".

Section 5 of the Interpretation Act 2005 sets out the circumstances in which, in the case of a statutory instrument, one may deviate from the literal interpretation:

"...(2) In construing a provision of a statutory instrument (other than a provision that relates to the imposition of a penal or other sanction)—"

(a) that is obscure or ambiguous, or

(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of the instrument as a whole in the context of the enactment (including the Act) under which it was made,

the provision shall be given a construction that reflects the plain intention of the maker of the instrument where that intention can be ascertained from the instrument as a whole in the context of that enactment."

The questions must be asked: are the provisions at article 3(1)(b)(iii) of the Regulations obscure or ambiguous? or does a literal interpretation result in an absurdity or fail to reflect the plain intention of the Oireachtas (assuming that the Minister making the Regulations is required to reflect the intentions of the Oireachtas)? My view is that the answer to these questions is in the negative. There is nothing in the language of article 3(1)(b)(iii) of the Regulations that is obscure or ambiguous; while it might have been worded more carefully, it is capable of being understood relatively easily. Neither can it be said that the literal interpretation will result in an absurdity. While conferring an unqualified right of access to the personal information of a deceased person, on a spouse or a next of kin, may not have widespread approval, it can hardly be seen as an absurdity. Nor can it be said that the literal interpretation fails to reflect the plain intentions of the Oireachtas. Indeed, I have argued elsewhere that it is extremely difficult to discern what the intention of the Oireachtas may have been in this regard. In my contribution to a recent publication on FOI matters ["Access to Records of Deceased Persons under Freedom of Information" in Freedom of Information: Law and Practice, First Law 2006 (ed. Estelle Feldman) ], I dealt with this issue as follows:

"It is well settled by the Courts that secondary legislation involves a delegation by the Oireachtas to a public authority (usually a Minister) to fill in, by way of regulations, the details of a provision of primary legislation (an Act of the Oireachtas) in a context in which the parameters of what is to be done are set down in that Act. What is involved is the putting into effect of the "principles and policies" set out by the Oireachtas in the parent Act. The Oireachtas envisages, in section 28(6)(b) of the FOI Act, that the records of deceased persons may be released where the requester "is a member of a class specified" in regulations to be made by the Minister for Finance. As matters stand, it is a matter for the Minister to specify classes of requester to whom a deceased person's records may be released.

However, in specifying such classes in his regulations, the Minister must not go beyond the "principles and policies" set down by the Oireachtas in the FOI Act. The difficulty is to discern what are the principles and policies set down by the Oireachtas in this regard. The FOI Act contains two explicit references to the personal information of deceased persons; the first is at section 28(1), which exempts such information from release, and the second is at section 28(6)(b), which provides for the making of regulations to derogate from the exemption in the case of requesters who belong to a class specified by the Minister. Other than these two references, the FOI Act contains no principle or policy concerned explicitly with the records of deceased persons. Indeed, insofar as I can establish from checking the Dáil and Seanad debates, there was no reference of any substance to the matter of deceased persons' records when the FOI Bill was dealt with by the Oireachtas in 1996 and 1997.

If one seeks out those principles and policies informing the FOI Act as a whole, one looks primarily to the Long Title which identifies certain key items such as:

  • access is to be provided to the greatest extent possible;
  • access is a matter of right;
  • access is to be consistent with the public interest and the right to privacy;
  • access rights are to be restricted by "necessary exceptions".

Within the body of the FOI Act, it may be argued that the Oireachtas has established relevant principles and policies insofar as it seeks to protect information obtained in confidence (section 26) and personal information, including that of deceased persons (section 28). Furthermore, section 29 establishes the principle of consultation with the third party concerned where confidential, personal or commercially sensitive information is proposed to be released in the public interest.

In the case of deceased persons ... it would appear that there is no right to privacy. If so, then the principle of respecting privacy is not relevant to the Minister's regulations. In the case of confidentiality, there is also a problem in that it is unlikely that a duty of confidence could be owed to a deceased person. If a duty of confidence may be owed to the dead, how can the Minister frame regulations which will circumvent such a duty?

It does seem to me that, in setting about the task of specifying classes of requester to whom a deceased person's records may be released, the Minister for Finance has very little to go on in terms of principles and policies contained in the FOI Act itself. It is arguable that of the principles and policies within the FOI Act, as identified above, the two of immediate relevance are (a) the use of a public interest test and (b) the desirability of consultation with whoever may be regarded as the "guardian" of the records of the deceased person. Interestingly, this approach appears to be that provided for in Queensland's FOI Act ... where records of a deceased person may be released but only on the basis of a public interest test and following consultation with the appropriate "eligible family member".

[...]

Overall, my conclusion is that the present FOI Act, insofar as dealing with access to records of deceased persons is concerned, does not contain a sufficiently clear statement by the Oireachtas of those "principles and policies" to which the Minister should have regard in making regulations."

A departure from a literal construction may also be warranted in respect of individual cases where reliance on the literal construction gives rise an outcome which is likely to offend against the Constitution. I do not believe that this would occur in this case. While there may well be policy reasons for favouring an alternative construction of the provision at issue, I am not satisfied that this allows me to deviate from the rule of literal construction.

I note that Professor McDonagh [Freedom of Information Law (Second Edition) Thomson Round Hall 2006] and other commentators share my view as to the interpretation of the provision.

Conclusion in relation to section 28(6)

My conclusion is that when records relating to a deceased person are sought, section 28(6) must always be considered; and, if the criteria set out in the Regulations are met, the granting of the request is mandatory, subject only to there being some other statutory exemption which prohibits the grant. In this case, you are a next of kin of the deceased and I am satisfied that "a next of kin" is a broad category and that I am not entitled to import any hierarchy or other restriction into the term. I am satisfied that you are a requester belonging to a class within the terms of section 28(6)(b) of the FOI Act and of article 3(1)(b)(iii) of the Regulations and that you are entitled to be given access to your late mother's hospital records in accordance with these provisions. I find accordingly.

While I have found that you have a right of access in accordance with section 28(6)(b) of the FOI Act and of article 3(1)(b)(iii) of the Regulations, this right would not prevail in circumstances where some other exemption applied to protect the records or some of them. The Board has not sought to rely on any exemption other than section 28(1); however, it has referred to the issue of confidentiality attaching to patient records and I believe it is appropriate to consider whether the records may be protected on the basis of confidentiality. There is also the issue of your right to those portions of the records which, while primarily about your late mother, also disclose the personal information of members of your family (not including your wife, as I understand she has consented to you having access to any references to her and, in any case, such references are minor in nature).

Section 26 - Information given in Confidence

In the Board's submissions, there is reference to patient confidentiality although it does not appear to be relying on section 26 of the FOI Act in its refusal to grant your request. I now consider whether there is anything in section 26 of the FOI which would displace your entitlement under section 28(6)(b) of the FOI Act and of article 3(1)(b)(iii) of the Regulations.

Section 26(1) of the FOI Act states that:

"Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if -

(a) the record concerned contains information given to a public body in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or

(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law."

Section 26(2) provides:

"(2) Subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, a public body or a person who is providing a service for a public body under a contract for services) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services."

Given that the records involved were created by the staff of the Hospital and/or by persons who have a contract for services with the Board (HSE), I consider that section 26(1)(a) cannot apply and I find accordingly. For section 26(1)(b) to apply, it would have to be established that release to you of your late mother's records would constitute a breach of a duty of confidence owed by the Board to your late mother.

In this instance any duty of confidence would be based, not on any specific agreement or enactment, but on equity. The correct tests to apply in deciding whether there is a breach of an equitable duty of confidence are set out in the case of Coco v. A. N. Clark (Engineers) Limited F.S. R. 415 (which is accepted as reflecting the Irish law on the subject - see, for example, House of Spring Gardens Limited v. Point Blank Limited [1984] I.R 611) in which Megarry, J. stated as follows:

'Three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself...must have the necessary quality of confidence about it. Secondly, that information must have been imparted in circumstances imposing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.'

I accept that information arising in a professional relationship between a health professional and a patient would normally fall within the category of confidential relationships traditionally recognised by law. I accept for the purposes of my review that, at the time the information was recorded, the circumstances were such that there was a basis on which to establish the quality and obligation of confidence. The third element, the requirement that there is an unauthorised use of that information to the detriment of the party communicating it, causes difficulties in the circumstances of a case where that party is now deceased and release of the information to certain classes of persons is authorised under the FOI Act.

There appears to be considerable uncertainty as to whether deceased persons have rights under Irish law. In Murray and Another v. Commission to Inquire into Child Abuse [2004] 2 IR, Abbot J. stated that he could "find no authority in the history of the common law asserting a right of the deceased to a good name or to any property rights". In terms of rights for deceased persons provided for in the Constitution, Abbot J. found "that there is no place in the Constitution from where the rights of the deceased may be rationally inferred".

I have no difficulty with the notion that the medical profession generally feels bound by confidentiality. I consider, however, that the obligations of the Hospital's medical staff to the deceased would not necessarily equate with the existence of an equitable duty of confidence owed by the Hospital to the deceased. In addition, release of a record in compliance with a decision under the FOI Act would differ significantly from any unauthorised disclosure of patient information by a doctor or other medical professional.

In seeking to apply section 26(1)(b), regard must be had to the FOI Act as a whole and section 28(6) should be considered as setting the framework for dealing with the records of a deceased person. This is not to preclude the use of other provisions - article 3 of the Regulations states that release under that provision should be "subject to the other provisions of the [FOI] Act". However, I take it that the other provisions of the Act to which regard must be had are those provisions which operate to protect interests other than those of the deceased person; for example, the right to privacy of living people (section 28), the right to preserve confidentiality in relation to records covered by legal professional privilege (section 22) or the right of the State to protect records bearing on matters of national security or international relations (section 24). Rather, section 28(6) should set the context for considering the release of deceased persons' records where the requester is in one of the classes specified. This statutory process is sufficiently rigorous that requests will be granted only where the requester is found to be someone to whom release of the records is authorised by statute. Otherwise, it is difficult to see how the provisions of section 28(6) and the Regulations could ever operate to allow access to the records of deceased persons to their personal representatives, spouses, next of kin or other persons found to be appropriate persons.

In any event, for there to be a breach of a duty of confidence one would expect to be able to identify a living person in respect of whom the breach has occurred and who, as a consequence, would be in a position to sustain an action for breach of that duty. I consider that I have no grounds in this case for concluding that release of the records to you at this stage would cause detriment to the deceased or to her personal representatives in fulfilling their legal obligations.

Section 28(6)(b) provides for the release of the personal information of deceased persons in certain circumstances; in effect, it provides for what, on the face of it, is a limited breach of privacy and of confidentiality. Section 28(6)(b) and the Regulations provide for a process under which the personal and confidential information of a deceased person will be released to certain specified classes of person and to such classes only. I take the view that to invoke section 26, in relation to personal information which is otherwise releasable by virtue of section 28(6)(b), is at odds with the intent of the FOI Act.

I am not satisfied that release of the record under section 28(6)(b) of the FOI Act would amount to unauthorised disclosure. Accordingly, I find that section 26(1)(b) does not apply to exempt the records in this case. On this basis, the records fall to be released by virtue of section 28(6)(b) and the Regulations. However, as outlined below, this right of access does not necessarily extend to those portions of the records which contain references to other members of your family (including instances in which these references also include references to yourself).

Records containing the personal information of others

It is important to be clear that your right of entitlement to your late mother's records, under section 28(6)(b), does not extend to a right of access to record portions which disclose the personal information of other family members (in addition to disclosing the personal information of your late mother). In some instances, these portions relate to your late mother, to yourself as well as to another family member. In principle, these portions are exempt from release on the same basis as is the personal information of any third party, that is, under section 28(1).

Ms Dolan has already set out for you the various possibilities within section 28 [section 28(2), 28(5)] which allow for the setting aside of the section 28(1) protection. I agree with Ms Dolan's view that none of the provisions of section 28(2) apply in this case. Section 28(5) provides that a record containing the personal information of a third party may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual, to whom the information relates, should be upheld, or (b) the grant of the request would benefit that individual. In my view, the granting of the request in this case would not benefit the individuals to whom the information relates. However, the question of release in the public interest requires to be considered in respect of those records which contain the personal information of members of your family.

The Public Interest

In order to obtain access to such records, it is necessary to identify a positive public interest which outweighs the privacy rights of the third parties. I note that you have not identified any specific public interest which might be served by the release to you of those portions of the records concerning other family members. However, I consider that public interest factors in favour of release of the records in this case might include:

  • the public interest in members of the public knowing how a public body performs its functions,
  • the public interest in members of the public knowing that information held by public bodies is accurate.

In determining whether the public interest considerations favouring release of the records outweigh the public interest in respecting the right to privacy, there is a number of matters to be taken into account. The first matter is the fact that the public interest in respecting privacy rights is very strong indeed, as is clear from the Long Title to the FOI Act and from the wording of section 28(5)(a). In the context of FOI, the protection of an individual's privacy is also a public interest and not a matter of protecting private rights. When a record is released under the FOI Act this, in effect, amounts to disclosure to "the world at large" as the Act places no restrictions on the subsequent uses to which the record may be put. Other matters of relevance include (1) the extent to which you are already aware of the information contained in the records and (2) whether release of the records at issue would actually add significantly to your understanding of how the Hospital performed its functions in relation to your late mother.

In your correspondence with the Board, you made the point that the withholding of records of correspondence between the Hospital and Dr Z (your mother's GP) puts you at a disadvantage. Insofar as this may be construed as an argument that there is a public interest in your having full details of the Hospital's contact with Dr Z in regard to your mother's care, I agree that these records relate primarily to your deceased mother and comprise her personal information. Accordingly, they fall to be released as part of your mother's medical records in accordance with my findings above. I consider that, in this particular case, it is feasible to delete references relating to persons other than yourself and your mother from these records without rendering the records misleading.

Therefore, I take the view that any public interest in your knowing how the health services dealt with your mother's admission and care is satisfied by the release of her medical records to you as a next of kin in accordance with section 28(6)(b). I do not believe that the public interest in your having access to the small amounts of third party personal information to be found in these records outweighs the public interest in preserving the right to privacy of persons other than yourself, your wife and your mother. My finding is that section 28(5)(a) does not give you a right of access to those portions of the records which contain third party information.

In view of my finding that parts of the records are exempt under section 28, I have not considered whether the third party information in them might have been received in confidence by the Board and whether they might also qualify for exemption under section 26(1) of the FOI Act.

The portions of the records to be withheld are:

Record 14 - last paragraph; record 15 - first paragraph; record 68 - address and telephone number in line 5 of first entry; record 80 - lines 4 and 5 of first paragraph, line 3 (from "...again"), lines 4-6, line 8 from "... re same", of third paragraph; record 87 - addresses and telephone numbers for persons other than yourself; record 95 - lines 2-4; record 142 - third item line 1 and line 2 as far as "... re", record 147- last sentence (after "...to").

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby annul the decision of the Board to refuse you access to the medical records of your late mother and direct that copies of the records, with the exception of those parts identified above as being exempt under section 28(1) of the FOI Act, be released to you by the Health Service Executive (as the successor to the Board).

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from that decision. Such an appeal must be initiated not later than eight weeks from the date of this letter.

Yours sincerely




Emily O'Reilly
Information Commissioner