Case number: OIC-140162-W3N6M9

Whether the HSE was justified in refusing access to the applicant’s request for access to safeguarding records concerning his late uncle under sections 35(1)(a), 37(1) or 42(m)(i) of the FOI Act

 

17 January 2024

 

Background

In a request dated 24 April 2023, the applicant sought access to the complete file of the HSE Safeguarding and Protection Team concerning his late uncle. In a decision dated 29 May 2023, the HSE refused access to the requested records on the basis that the request is not valid. It did not cite any particular section of the Act upon which it based its refusal.

On 31 May 2023, the applicant requested an internal review of the HSE’s decision. On 19 June 2023, the HSE affirmed its decision. On 2 July 2023, the applicant applied to this Office for a review of the HSE’s decision.

During the course of the review, the Investigator wrote to the Head of the HSE and outlined his view that the original and internal review decisions fell short of the requirements under the FOI Act. He required the HSE to furnish the applicant and this Office with a statement of reasons for its decision. In its statement of reasons, the HSE said it had relied on sections 35(1)(a), 37(1) and 42(m)(i) of the FOI Act in refusing access to the requested records. The HSE also provided focused submissions with additional material information in support of its decision. This Office provided the applicant with an update in relation to these submissions and the applicant provided comments and observations in reply.

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 correspondence between the applicant and the HSE as outlined above and to the communications between this Office and both parties on the matter. I have also had regard to the contents of the records at issue and the provisions of the FOI Act.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the HSE was justified in refusing the applicant's request for access to his late uncle's safeguarding file under sections 35(1)(a), 37(1) or 42(m)(i) of the FOI Act.

Preliminary Matters

Before I consider the substantive issues arising in this case, I would like to make the following preliminary comments. Firstly, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.

Secondly, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.                                                                                   

Analysis and Findings

Section 37 Personal Information

In my view section 37 is of most relevance in this case, I will consider its applicability to the records first.

Section 37(1) and 37(7)

Section 37(1) of the Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record would involve the disclosure of personal information, including personal information relating to a deceased individual. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester. The section does not apply where the information involved relates solely to the requester (subsection (2)(a) refers).

However, section 37(7) provides that, notwithstanding subsection (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). In essence, this means that while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, if that personal information is inextricably linked to personal information relating to parties other than the applicant, then section 37(1) applies. It is also important to note that the fact the applicant may be aware of the identity of the other party(s) does not mean that the information cannot be protected under section 37(1).

Section 2 of the FOI 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 an 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 above definition, constitute personal information, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual, (ii) information relating to the financial affairs of the individual, (xiii) information relating to the property of the individual (including the nature of the individual’s title to any property) and (xiv) the views or opinions of another person about the individual.

The HSE states that the information withheld in this case is personal to a number of people, most importantly, the safeguarding case refers specifically to one vulnerable adult who is now deceased. It states that the records also contain personal information of third parties and those supporting the vulnerable adult are also entitled to privacy. I am satisfied that the records contain information about the applicant’s uncle that meets the definition of personal information and which is in any event captured by one or more of the categories of personal information set out above. Certain parts of the records also contain references to the applicant. However, I am satisfied that such information relating to the applicant is inextricably linked to personal information relating to the applicant’s uncle. I also note that the disclosure of the records would, in some instances, involve the disclosure of information relating to individuals other than the applicant or his uncle. I am satisfied that this information is personal information relating to those third parties and the section 37(1) applies. Accordingly, I find that section 37 applies to the information contained in the safeguarding records. Section 37(1) is subject to the other provisions of section 37, which I examine below.

Section 37(2)

Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances provided for in section 37(2) apply to the information concerned. That is to say, the information contained in the records does not relate solely to the applicant; the third parties have not consented to the release of their information; the information is not of a kind that is available to the general public; the information at issue does not belong to a class of information which would or might be made available to the general public; and 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)

Section 37(5) provides that a request that would fall to be refused under subsection (1) may still be granted where, on balance, (a) 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 the person to whom the information relates. In the particular circumstances of this case, I find that section 37(5)(b) does not apply.

Before I consider the applicability of section 37(5)(a), there are a number of 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 section 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 third party individuals 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 & 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.

Many of the arguments made by the applicant in his submissions to this Office in favour of release of the records fall to be considered under my examination of the applicability of section 37(8) given that they are essentially private interests and relate to his relationship with the deceased, about whom the records relate. However, I note that among other things, the applicant has said that he has concerns about the care provided to his late uncle. The concerns relate to the circumstances in which the HSE safeguarding and protection team became involved with his uncle, whether his uncle consented to their involvement and whether the applicant was targeted due to his prior interactions with the HSE. It seems to me, that the applicant’s arguments are reflective of the public interest in ensuring that vulnerable individuals are afforded appropriate levels of care and support, the public interest in the public knowing how a public body performs its functions and the public interest in members of the public knowing that information held by public bodies about them is accurate.

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, including those afforded to deceased persons under the FOI Act, 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).

I accept that disclosure of the records would give an insight into how the HSE acted in carrying out its functions in terms of safeguarding and protection matters and would enhance transparency around the levels of care and support afforded to vulnerable individuals. However, this does not mean that there should be no protection of privacy rights of individuals. While the applicant says that he is unhappy with how the HSE acted in this matter, I do not believe it is appropriate for me to direct the release in the public interest of third party personal information, effectively to the world at large, on the basis that the applicant is dissatisfied with the HSE’s actions, or indeed the actions of others. Neither do I have any remit to consider, or make findings on, the merits of such actions.

I am satisfied that releasing the withheld information into the public domain would significantly breach the rights to privacy of identifiable individuals other than the applicant. Having regard to the nature of the information at issue, I am aware of no public interest factors in favour of the release of the specific withheld information that, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Section 37(8) and the 2016 Regulations (S.I. 218 of 2016)

Section 37(8) of the Act provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform may provide by regulations for the grant of an FOI request where the individual to whom the record concerned relates is dead 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 Regulations provide that notwithstanding section 37(1), a request may be made for records which involves the disclosure of personal information relating to a deceased individual. Such a request shall, subject to the other provisions of the Act, be granted if the case falls within a case to which Regulation 7 applies. Regulation 7 applies where:

(a) the requester concerned belongs to one or other of the following classes:

(i) a personal representative of the individual acting in due course of administration of the individual’s estate or any person acting with the consent of a personal representative so acting…

(b) the requester is the spouse or the next of kin of the individual and in the opinion of the head, 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 neither section 37(8) nor the 2016 Regulations provide a basis for releasing records, or parts of records, which contain personal information relating both to a deceased person and a third party, except where the third party is the requester. Accordingly, I do not need to consider whether any information which comprises joint personal information relating to the deceased and a third party, other than the applicant, falls for release under the Regulations.

Under section 48(1) of the FOI Act, the Minister may draw up and publish guidelines for the effective and efficient operation of the Act to assist bodies in the performance of their functions under the Act. Section 48(3) of the FOI Act provides that FOI bodies "shall have regard to” such guidelines when performing their functions under the FOI Act. The Minister has produced Guidance relating to section 37(8) and the Regulations.

The class of requester identified in Regulation 7 part (a) is the personal representative of the individual acting in due course of administration of the individual’s estate. The Guidance states that the personal representative has the same right of access as the deceased person enjoyed when living, in respect of records relating to the performance of the functions specified in the regulations. The guidance provides that the class concerning a personal representative of the deceased covers only people who have taken out a grant of probate in cases of testacy and does not include a will where a grant of probate has not been taken out, i.e. with an unproven will. The applicant has provided this Office with a copy of his late uncle’s will which names him as a co-executor of the will.  However, the applicant states that he has not taken out a grant of probate in relation to his late uncle’s will and he will not take out a grant of probate until he receives the safeguarding file. In these circumstances, I find that the applicant does not have a right of access to the records sought pursuant to Regulation 7(a)(i) of S.I 218 of 2016.

The class of requester identified in Regulation 7 part (b) is the spouse or the next of kin of the individual. Regulation 8 of the 2016 Regulations defines “next of kin” as follows: a. issue, b. parent, c. brother or sister, d. a niece or nephew, or, e. any other person standing nearest in blood relationship to the individual in accordance with section 71(2) of the Succession Act 1965 (No.27 of 1965). The Minister’s published guidance concerning access to records relating to deceased persons pursuant to S.I. 218 of 2016. suggests that each of these case must be judged on its own merits and that the public interest in the confidentiality of personal information will have to be balanced against the public interest in the right of the requester to access the records. It suggests that in light of the requirement in the 2016 Regulations to have regard to "all the circumstances" when considering whether to grant or refuse a request from a spouse or next of kin of a deceased person, the factors to be considered include:

  • 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. 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 - 8th edition published May 2016);
  • whether the requester can get the information they want without accessing the records of the deceased;
  • any other relevant circumstances that the requester may set out.

The HSE states that as the applicant is one of a number of nephews of the deceased, it considered whether the public interest would on balance be better served by granting than by refusing to grant the request. It is the HSE’s position that, if he were alive, the deceased would not have consented to the release of the records to the applicant. It said that the relationship between the deceased and the applicant was challenged and the deceased had sought to cease communications with the applicant. It referred to parts of the records in support of its submissions which I cannot describe here, due to the constraints of section 25(3), but I confirm that I have had regard to them.

The applicant states that his uncle’s spouse predeceased him and he did not have any children and has no living brother or sister. The applicant states that he and his brother who is the other executor named in the will, are the next of kin. The applicant states that he was also nominated as next of kin for the purposes of his uncle’s nursing home care.  The applicant said that he took care of his uncle and his late aunt for a period of 15 years while living in their own home and then in a nursing home. He says he was promised lands by his uncle and asked by his uncle to arrange for this with his uncle’s solicitor. He says he was unable to make these arrangements and the HSE’s safeguarding and protection Team put a stop to his communications with his uncle. He says he was unfairly treated by the safeguarding and protection team and he needs the file to see whether his uncle was being honest with him in relation to his promise concerning the lands.

It is clear that there is a conflict between the applicant and the HSE in their respective characterisations of the relationship between the applicant and his deceased uncle and the circumstances of that relationship prior to his death. It is beyond the scope of this review to seek to resolve this dispute. In considering where the balance of the public interest lies, I must have regard to the evidence presented by both parties to the review, including having regard to the content of the records themselves. Having done so, it is not apparent to me that the applicant’s deceased uncle would have consented to the release of the records at issue to the applicant if he were still alive. Accordingly, and having regard to the inherently private and confidential nature of the records, I am satisfied that the HSE was justified in arriving at its decision that the public interest, including the public interest in the confidentiality of personal information, would not be better served by the release of the records to the applicant in this case.

I find that the HSE was justified in finding that the applicant does not have a right of access to the records at issue under section 37(8) of the FOI Act and the 2016 Regulations as the next of kin of the deceased. Accordingly, I find that the HSE was justified in refusing access, under section 37(1) of the Act, to the records sought.

As I have found the records to be exempt from release under section 37(1), I do not need to consider the applicability of sections 35(1)(a) or 42(m) to the records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decisions. I find that it was justified in refusing, under section 37(1) of the FOI Act, the applicant’s request for access to the Safeguarding records relating to his deceased uncle.

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.

 

Jim Stokes
Investigator