Case number: 99077
Records relating to the requester's admission and treatment in a psychiatric hospital - whether there was an equitable duty of confidence owed by the Board to a member of the requester's family, who gave it information concerning the requester - section 26(1)(b) - public interest - whether record containing doctor's own views about the requester contained information given to the Board in confidence - section 26(1)(a) - whether information concerning the requester's wife's current address was personal information about her - section 28(1)
The requester, through his solicitor, sought access from the South Eastern Health Board (the Board) to records relating to his admission to, and treatment in, a psychiatric hospital. The requester was given access to a number of records but the Hospital withheld three records. The first was a note, detailing a conversation between a staff member of the Board and a member of the requester's family, regarding his behaviour and condition. The second withheld record detailed a doctor's own views in relation to the applicant's mental health status. The third withheld record referred to the current address of the requester's wife.
The Commissioner decided that section 26(1)(b) could only apply to a record prepared by a Health Board official, where disclosure of the information in question would constitute a breach of a duty of confidence. He accepted that there was an equitable duty of confidence owed by the Board to the member of the requester's family who had spoken to it about the requester. He noted that, whereas section 26(1)(b) is not subject to the public interest test at section 26(3), there can be circumstances in which a duty of confidence may be breached in the public interest. Given that the Board had considered public interest arguments in its decision, the Commissioner opted to outline his views on how such arguments might apply.
The Commissioner considered that there is a strong public interest in a person being able to gain access to records which describe aspects of their medical history, and which might have had a bearing on their diagnosis or treatment. On the other hand, he also considered there to be a strong public interest in maintaining the confidential nature of the relationship between a doctor and other members of a patient's family. He said that such confidentiality might be set aside in the public interest in cases where, for example, the information imparted formed the sole basis for subsequent treatment the consequence of which proved traumatic; or where the information appeared not to have been given in good faith. In this case, he noted that the information contained in the record was already substantially known to the requester. He found that, if he had to consider section 26(3) in this case, he would not have found that the public interest was, on balance, better served by the release of this record to the requester.
The Commissioner found that section 26(1)(b) did not apply to the record containing the views of the doctor about the requester's mental health status. Instead, he considered that it related to personal information about the requester. As the Board did not argue that release to the requester might be prejudicial to his physical or mental health, well-being or emotional condition, the Commissioner directed the release of the record. He also considered that the record, showing the current address of the requester's wife, was information held by the Board on the understanding that it would be treated by it as confidential. He found that the record's contents amounted to personal information about her and was exempt from release to the requester under section 28(1). He found that the public interest did not warrant the release of that record.
Our Reference: 99077
Dear Mr Y
I refer to previous correspondence in relation to the application by Mr. X for a review of the decision of the South Eastern Health Board to refuse to grant him access to certain records relating to his "admission, treatment and diagnosis" in St. Luke's Hospital, Clonmel in [specified years]. Mr. X's request was made under the Freedom of Information (FOI) Act, 1997.
Please accept my apologies for the delay in bringing this matter to a conclusion. I appreciate that Mr. X would have wished to obtain a decision at an earlier date but unfortunately, due to the large number of cases pending before me, this did not prove possible. I have now concluded my consideration of this case and my findings and decision are set out below.
During the course of my review of this case Mr. X's wife was consulted, in accordance with the provisions of section 34(6) of the FOI Act (the FOI Act) in relation to records number 5 and 6. In reviewing this case I have had regard to the following matters -
Following your submission of 8 February last the confusion surrounding the numbering of the records released to Mr. X was taken up with the Health Board. I understand that a representative of the Board contacted you with a view to clarifying those records which are currently in Mr. X's possession. I should say here that the record to which Mr. Tallon referred as "Record number 15" in his letter to you of 22 January had, despite his having been advised otherwise, already been released to Mr. X.
For the avoidance of any further doubt in the matter, I will now describe those records which the Board has confirmed to me as the only records to which your client has been refused access. These are as follows -
These are two separate pages of the same document dated 2 January 1980.
Record number 7 was released to your client with the exception of the last paragraph which is dated 9 January 1980. Record number 8 was also released to your client but with the exception of the first paragraph. The information contained in the first paragraph of record number 8 is a continuation of the information contained in the last paragraph of record number 7.
This is a hand written note showing the current address of Mrs. X. It was not referred to in Mr. Tallon's correspondence as he had previously been advised that it had already been released to your client. The Health Board now says that it has not released this record.
The only matter on which I must decide in this case is whether or not the South Eastern Health Board was justified, in accordance with the provisions of the FOI Act, in its decision to withhold the records described above from Mr. X. The Health Board's decision is as set out in Mr. John Magner's letter of 5 January 1999.
The Health Board claimed exemption from the release of these records under section 26(1)(a) of the Act. However, having considered the matter carefully, it appears to me that the Health Board would have been better advised to have relied upon section 26(1)(b) rather than section 26(1)(a). The text of these sub-sections is set out below:
"Information obtained in confidence. 26.�(1) 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 the public body concerned 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.
(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."
Because these are records created by a member of staff of the Health Board, section 26(1) will apply only where disclosure of the information in question would constitute a breach of a duty of confidence. In this case it appears to me that the Health Board owed an equitable duty of confidence to the person imparting the information. For a breach of an equitable duty of confidence to apply, there are three requirements. 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. Having reviewed the content of the records in question, it is clear that it does have the necessary quality of confidence. Furthermore, both the Health Board and the person imparting the information are in agreement that the information was given and received in confidence. Finally, both the Health Board and the person imparting the information regard its release to you as not authorised; and the person who imparted the information contends that its disclosure to you would be to that person's detriment. I accept, having seen the records in question, that their disclosure would involve a breach of a duty of confidence and that, accordingly, section 26(1)(b) applies to them.
In the case of a record to which section 26(1)(b) applies it is not necessary for me to consider release in the public interest in the terms laid down in section 26(3). However, there are circumstances where the duty of confidentiality may be breached in the public interest, for example, to reveal wrongdoing or to prevent inequity. Given that the issue of the public interest has already been raised in the context of these records and given that the exemptions in section 26 have been giving rise to some difficulties for public bodies, I have decided to outline my thinking on the operation of section 26(3). I am taking this approach in this case because while the records were prepared by a member of staff of the Health Board, they could just as easily have been letters or statements prepared by members of the requester's family and therefore, comprehended by section 26(1)(a) and section 26(3).
Although I must, of necessity, be circumspect in relation to the nature of the information contained in these records, I can say that they consist of a note relating to Mr. X's mental status recorded by its author, either in interview or following interview, with members of Mr. X's family. Having regard to the nature of the note, it is reasonable to assume that the author was the hospital doctor attending Mr. X.
I recognise that the information contained in the note was prepared with a view to providing the attending doctor with information which might assist in the diagnosis and treatment of the patient. I believe that there is a strong public interest in a person being able to gain access to records which describe aspects of their medical history and which contain information which might have had a bearing on their diagnosis and/or treatment. I am of the view, however, that there is also a strong public interest in the maintenance of the confidential nature of the relationship between a doctor and other members of a patient's family. It seems to me that this public interest is particularly strong where the patient's illness is behavioural in nature and where family members need to be able to express themselves and, in some cases continue to express themselves in an open and frank manner in order to ensure that the attending doctor is fully informed. A further consideration is that the information contained in records 5 and 6 was given more than 20 years ago, long before the enactment of the FOI Act, and at a time when the confidentiality of the transaction would have been absolutely guaranteed. There would seem to be a very strong public interest in honouring a confidentiality commitment which, at the time it was given, was almost absolute.
I can envisage circumstances in which such a strong guarantee of confidentiality might be set aside in the public interest. This might be necessary where, for example, the information imparted in confidence formed the sole basis for subsequent treatment the consequences of which proved traumatic; or where, for example, the information appeared not to have been given in good faith or, indeed, to have been based on malice; or where the information was of a kind not already known to the requester and there appeared to be a compelling reason to acquaint the requester with that kind of information.
In applying these possible considerations to this particular case, I have taken into account the content of record numbers 5 and 6 together with the nature of the information already released to Mr. X. Had I arrived at the conclusion that the information contained in the records consisted of information not already substantially known to Mr. X, I may well have taken the view that the public interest would, on balance, be better served by granting rather than refusing to grant access to the records. However, having considered the nature of the information in the records and the nature of the records already released to him, I have arrived at the conclusion that the information they contain is already substantially known to Mr. X. Cognisant of the fact that the persons who provided the information have not consented to its release, if I had to apply the public interest test in section 26(3) in this case, I consider that the public interest would not, on balance, have been better served by granting rather than refusing to grant access to the records. It follows from this that there is no need for me to consider the more limited public interest considerations which apply in the case of section 26(1)(b).
The Health Board refused Mr. X access to the last paragraph of record number 7 and the first paragraph of record number 8 on the basis of a claim for exemption under section 26(1)(a). Having considered the fact that the records concerned were prepared by a doctor working on behalf of the Health Board, I am satisfied that the provisions of section 26(2) of the Act apply and find that the Health Board was not justified in its decision to refuse access under section 26(1)(a).
As the withheld information primarily reflects the author's views in relation to Mr. X's mental health status at a particular point in time, I am satisfied that the withheld parts of record numbers 7 and 8 contain personal information, as defined in section 2 of the Act, relating to Mr. X. As indicated in Ms. Tallon's letter to you of 1 May 2001, given the nature of that information, I would have expected the Health Board to consider whether the exemption at section 28(3) of the FOI Act should apply. This exemption applies where the head of the public body considers that the disclosure of the record in question might be prejudicial to Mr. X's physical or mental health, well-being or emotional condition. While the information was recorded over twenty years ago and other parts of the withheld records have already been released to Mr. X, I am satisfied that the nature of the withheld information differs in character from that already released.
In order to consider the possible application of section 28(3) I requested the Health Board's comments in relation to the possible prejudicial effect which disclosure of this information might have on Mr. X's physical or mental health, well-being or emotional condition. The Health Board did not respond to this request. In the absence of a response, I must assume that the Health Board does not consider that disclosure of the withheld parts of record numbers 7 and 8 would be prejudicial to Mr. X's physical or mental health, well-being or emotional condition. As there is no evidence available to me to suggest that the release of the withheld information might have the prejudicial effects set out in section 28(3), I consider that there is no basis for withholding the information. Accordingly, I find that the Health Board was not justified in its decision to grant partial access to the record numbers 7 and 8. I have decided to annul that part of the Health Board's decision which relates to record numbers 7 and 8 and direct that the withheld information be released.
This is a hand written note showing Mrs. X's current address.
It is not entirely clear to me as to whether Mr. X is aware of Mrs. X's current address. However, it is reasonable for me to conclude that this information is held by the Health Board on the understanding that it would be treated by it as confidential. As such I am satisfied that it falls into the category of personal information as defined in section 2 of the Act. Having considered the public interest test set out in section 28(5)(a) of the Act I have arrived at the conclusion that the public interest that the request should be granted, in so far as it relates to this particular information, does not outweigh the public interest that Mrs. X's right to privacy be upheld.
I find that the Health Board was justified in its decision to withhold access to the record containing details of Mrs. X's current address.
Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I hereby affirm the decision of the South Eastern Health Board, as notified to Mr. X in Mr. John Magner's letter of 5 January 1999, in so far as it relates to records 5 and 6 and to the record containing Mrs X's current address; in so far as it relates to records 7 and 8, I hereby annul that decision and direct that the records be released
A party to a review, or any other person affected by a decision of the Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.