Whether the HSE was justified in redacting certain information from records held on the medical file of the applicants' deceased son under sections 35 and 37(1) of the FOI Act
21 May 2019
On 22 October 2018, the applicants submitted a request, through their solicitors, for access to their deceased son's medical records under the General Data Protection Regulations. On 24 October 2018, the HSE informed the applicants that the request would be processed as a request made under the FOI Act on the ground that the Data Protection Acts do not apply to the personal data of deceased individuals.
On 12 November 2018, the HSE issued a decision in which it part granted the request, redacting information from some records under sections 35 and 37 of the FOI Act on the ground that the redacted information comprised either information given in confidence or personal information relating to third parties. All of the records are held on the deceased's mental health file, comprising 80 pages in total.
On 6 December 2018, the applicants sought an internal review of the HSE's decision, following which the HSE affirmed its original decision. On 14 January 2019, the applicants sought a review by this Office of that decision.
During the course of the review the HSE stated it had reconsidered its position in respect of certain information withheld from pages 16, 19, 32, 35, 41, 53 and 60. It stated due to an administrative error it was unsure as to whether this information had been released to the applicant. The solicitors for the applicants subsequently confirmed they did not receive this information. The HSE has indicated it will release this further information to the applicants. Subsequent to this, the HSE also decided to release certain information withheld from pages 31, 41, 53 and 59.
I have now concluded my review in this case. In carrying out my review, I have had regard to the correspondence between the HSE and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the HSE on the matter and to the contents of the records at issue.
Scope of the Review
As a result of the HSE's decision to release certain additional information from the redacted records, pages 16 and 19 will now be released in full. Accordingly, this review is concerned solely with whether the HSE was justified in its decision to redact the information that remains withheld from pages 8, 12 to 15, 17, 18, 20, 22, 25, 26, 28, 31 to 33, 35, 41, 44, 45, 49, 50, 53 to 55, 59 to 61, 63, 68, 77, and 78 of the deceased's medical file under sections 35 and 37 of the FOI Act.
Before I consider the substantive issues arising in this case, I wish to make a number of preliminary comments.
Firstly, it should be noted that the release of a record on foot of a request made under the FOI Act is, in effect, regarded as release to the world at large, given that the Act places no constraints on the potential uses to which released records released under FOI may be put.
Secondly, while I am required by section 22(10) of the FOI Act to give reasons for my 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. Accordingly, I am constrained in the description which I can give of the information contained in the records to which the HSE has refused access and of the reasons for my decision.
Analysis and Findings
Section 37- Personal Information
The HSE withheld all of the information at issue, apart from that reacted from pages 13 to 15, under section 37 of the FOI Act. In my view, section 37 is also of relevance to the information redacted from pages 13 to 15.
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).
Having examined the information at issue, I am satisfied that it comprises either personal information relating solely to a third party or third parties, or personal information relating to the deceased that is inextricably liked to personal information relating to a third party (i.e. joint personal information). I am satisfied that the release of any of the redacted information relating to the deceased would also involve the disclosure of personal information relating to other individuals. I find, therefore, that section 37(1) applies.
Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case, namely (a) the information contained in the records does not relate solely to the deceased; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
Section 37(5) of the FOI Act 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 of the information would be to the benefit of the person to whom the information relates. It has not been argued that releasing the records would benefit the third parties to whom the information relates. I find, therefore, that section 37(5)(b) does not apply to the relevant records.
On the matter of whether section 37(5)(a) applies, I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the third parties to whom the information relates.
In considering where the public interest lies, I have 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  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 acknowledges that there is a public interest in promoting the openness and accountability of public bodies in the manner in which they perform their functions. 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 the right to privacy has 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.
It seems to me that the public interest in promoting the openness and accountability of the HSE in its dealings with the deceased has been served to a large extent by the release of the vast majority of the information contained in the records at issue. The question I must consider is whether the public interest in further enhancing that transparency and accountability by releasing the redacted information outweighs, on balance, the privacy rights of the third parties to whom that information relates. Having regard to the nature of the information at issue and to the fact that the release of information under the FOI Act is, in effect, release to the world at large, I find that it does not. I find, therefore, that section 37(5)(a) does not apply.
In conclusion, therefore, I find that the HSE was justified in refusing access to all remaining redacted information under section 37(1) of the FOI Act. Having found section 37(1) to apply, I do not consider it necessary to consider the applicability of section 35 to the information redacted from pages 13 to 15.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to redact certain information from the medical file of the applicants' deceased son under section 37 of the FOI Act.
Right of Appeal
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.