Case number: OIC-137932-S1Z3K0

Whether the HSE was justified in refusing, under section 37(1) of the Act, the applicant’s request for access to his adult daughter’s records

 

31 January 2024

 

Background

In a request dated 21 February 2022, the applicant sought access to records relating to his daughter for the period when she resided in a named residential centre for individuals with intellectual disabilities. By way of background it is noted that the HSE separately conducted a review into allegations of sexual abuse at the centre which occurred around the time the applicant’s daughter was resident in the centre. The applicant’s daughter is now resident in a different residential centre.

In a decision dated 5 May 2022 the decision maker indicated that a total of 1,230 pages fell within the scope of the applicant’s request, across four healthcare files. The decision-maker refused the request under section 37(1) of the FOI Act. It also indicated that it had considered the applicability of the FOI Act 2014 (Section 37(8)) Regulations 2016 (S.I. No. 218 of 2016) (“the 2016 Regulations”) and whilst accepting that the applicant fell within one of the categories of requesters referred to in section 37(8), it considered that the release of the records would not be in the best interests of the applicant’s daughter. 

On 11 May 2022, the applicant sought a review of that decision. He said he was not seeking access to the names of individuals or staff and accepted that such names should be redacted from the records. He argued that release of the records to him would assist in his daughter’s future care needs and said his daughter’s safety was his main concern.  On 30 May 2022 the internal reviewer affirmed its refusal of the request. On 29 April 2023 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 applicant’s comments in his application for review and to the submissions made by the HSE in support of its decision. I have also had regard to the contents of the records concerned. 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 its decision to refuse, under section 37(1) of the Act, the applicant’s request for his daughter’s records.

Preliminary Matters                                                                        

Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, 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. This provision has significant implications for the extent to which I can give reasons for my decision in this case and the extent to which I can describe the contents of the records at issue.

Secondly, I should also explain that the quality of certain records is poor and barely legible. The HSE said this poor quality is due to the age of the records, some of which are over forty years old. I have had regard to the contents of those records in so far as possible.

Analysis and Findings

Section 37(1)

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).

The FOI Act defines the term “personal information” as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. Those categories include information such as; (i) information relating to the educational, medical, psychiatric or psychological history of the individual, (ii) information relating to the financial affairs of the individual, and (viii) information relating to the religion, age, racial or ethnic origin, sexual orientation or civil status of, any disability of … the individual, and (xiv) the views or opinions of another person about the individual.

The records at issue document the almost twenty years spent by the applicant’s daughter in the residential centre. They consist of nursing notes, accounts of her daily activities, behavioural patterns and notes of her interactions with other service users and staff.  They also contain significant medical, psychological and psychiatric and other intimate details relating to the applicant’s daughter. Having considered the nature of the information contained in the records at issue, I am satisfied that their release would involve the disclosure of personal information relating to the applicant’s daughter, and others in the case of some records.

Some of the records also contain personal information relating to the applicant. However, I am satisfied that such information is inextricably linked to personal information relating to his daughter and that the release of such information would also involve the disclosure of personal information relating to his daughter. I find, therefore, that section 37(1) applies to the records at issue. As section 37(1) is subject to the other provisions of section 37, I will now proceed to consider the applicability of those provisions.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) applies in this case. That is to say: (a) the information at issue does not relate solely to the applicant; (b) the applicant’s daughter has 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 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)

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. Given the 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 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 section 37(8) and the 2016 Regulations 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.

In his submission to this Office, the applicant said that he is seeking access to his daughter’s records in order to highlight aspects of the care provided to her over many years.  The applicant also said that he wishes to ensure that certain practices which took place never happen again.  Finally, the applicant said that both he and his wife are extremely worried that his daughter may have been subjected to abuse within the residential centre and are seeking to access their daughter’s file in order to understand the full extent of any ill-treatment which she may have been subjected to. 

It seems to me that the majority of the arguments presented by the applicant in his submissions to this Office in support of the release of the records fall to be considered under my examination of the applicability of the 2016 Regulations in the context of the applicant’s status as the parent of the individual about whom the information relates.

Nevertheless, it also seems to me that his arguments are reflective of general public interests in ensuring that vulnerable individuals are afforded appropriate levels of care and are not abused or subjected to harm whilst residing in such residential care centres.   

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 incapacitated 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).

While I accept that the release of the records at issue might serve, to some degree, to somewhat enhance transparency around the levels of care and treatment afforded to vulnerable individuals in residential centres such as those in which the applicant’s daughter was a resident, it seems to me that the degree of enhancement would be quite limited, in so far as the records relate solely to one particular individual many years ago. Moreover, while I acknowledge the applicant’s understandable concerns about the care his daughter received against a background of allegations of abuse of residents having taken place at the centre at the time, it remains the case that the records at issue are of an inherently sensitive and private nature and that I must regard their release as being effectively, or at least potentially, to the world at large.  In such circumstances, I find that the public interest in granting the request does not, on balance, outweigh the strong privacy rights of the applicant’s daughter. I find, therefore, that section 37(5)(a) does not apply.

Section 37(8) and the 2016 Regulations

Section 37(8)(a) provides that, notwithstanding subsection (1), the Minister for Public Expenditure, National Development Plan 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 belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (the 2016 Regulations).

Among other things, the 2016 Regulations provide for a right of access by a parent or guardian of an individual who has attained full age to personal information relating to the individual in certain circumstances, namely;

  • at the time of the request, the individual has, or is subject to, a psychiatric condition, mental incapacity or severe physical disability, the incidence and nature of which is certified by a registered medical practitioner, and
  • by reason of that condition, incapacity or disability, the individual is incapable of exercising his or her rights under the Act, and
  • the FOI body considers, having regard to all the circumstances, release of the records would be in the individual's best interests.

The Minister has published guidance (the Guidance) on the application of the 2016 Regulations, 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 explains that decision makers should have due regard to the best interests of the individual to whom the records relate and that use of the Guidance in relation to adults will arise only where the adult is incapable of exercising his or her rights under the Act. It provides that decision makers would have to make whatever enquiries and consultation where necessary to verify any such incapacity. The Guidance goes on to describe the factors to be considered when assessing whether a right of access exists, including;

  • the nature and duration of the disability,
  • whether the individual would consent to the release of the records, and
  • whether release of the records would be damaging to the person in any way.

In considering whether the individual would consent to the release of the records, the Guidance provides that it may be helpful to consider matters such as whether access to the record may be of benefit to the requester, for example, to help improve the quality of care being provided to the individual, and whether the information is of a particularly private and sensitive nature. In considering whether the release of the records would be damaging to the individual in any way, the Guidance provides that the decision maker should consider certain factors including whether disclosure is likely to be damaging to the person’s interests

The HSE said that it is satisfied that the applicant’s daughter is not capable of exercising her rights under the FOI Act due to her severe learning disability. It said it accepts that the applicant, as her parent, falls within the class of individuals envisaged under the 2016 Regulations. It said that in considering what is in the best interests of the applicant’s daughter it carefully reflected on the following:

  • Whether the release of the records would be of benefit to the applicant
  • Whether access to the records may help improve the quality of care being provided to the applicant’s daughter
  • Whether the information is of a particularly private and sensitive nature
  • Whether it may be inappropriate to release the material to the parents/guardians
  • Whether release of the material would be damaging to the applicant’s daughter in any way

The HSE said the records at issue comprise the healthcare records of the applicant’s daughter over a period of almost twenty years.  It said that they outline her behaviour patterns, challenges and difficulties, personal intimacy matters, interaction with service users and staff members, social behaviours and personal habits.  The HSE said it made a considered and deliberate decision that it was not appropriate to release these files to the applicant as it believed that the release would contravene his daughter’s right to have her personal information and dignity preserved. 

The HSE expressed its opinion it would not be beneficial, helpful or in the best interests of the applicant to access his daughter’s files at this point, almost twenty years after she left the residential centre.  It said that the applicant is now an elderly gentleman who has shown his daughter great love and attention over the years. It said that it could cause him distress and be detrimental to his peace of mind to have access to his daughter’s records at this point; not because they contain incidents of abuse or neglect but because they present a picture of his daughter’s past difficulties and challenges in living within a model of care that may not have fully met her needs. It said that the applicant’s daughter was now residing in a centre which more appropriately met her needs and it said that neither she nor her father would benefit from the release of historical records relating to her past care. It added that the release of such records would not improve the quality of care currently being provided to the applicant’s daughter. 

The HSE said that the overarching consideration set out in the relevant Regulations and Guidance was what was in the best interests of the person to whom the records relate. It said that bearing in mind the inherently private and confidential nature of the records and taking into account that any release under the FOI Act is considered to amount to release to the world at large, it considered that the applicant’s request should be refused. 

In addition, the HSE also informed this Office that whilst it was processing the applicant’s FOI request, it separately received a complaint letter from two of the applicant’s daughters relating to the care provided to their sister whilst in the residential centre. It said that following engagement with the Head of Disability Services and the Head of Quality Safety & Service Improvement it was agreed that should the family have any questions concerning the contents of the applicant’s daughter’s records then answers could be provided to them through the Head of Disability Services. The HSE said the family were invited to submit a list of questions and a written response was sent to the applicant’s daughters.  It said that the applicant’s daughters expressed particular concerns regarding the allegations of abuse which occurred at the centre. It said that in its responses it gave some assurance by confirming that there was no mention of or reference to a particular individual coming into contact with the applicant’s daughter during her time in the centre. The HSE also said it addressed the family’s concerns regarding a number of incidents in relation to the applicant’s daughter.  

The HSE said that this engagement was outside the FOI process but has provided a copy of these responses to this Office. In its submission it said that the provision of this information was to assist the applicant’s daughters in their knowledge of the events relating to their sister. It also said that provision of this information is considered to have mitigated the public interest factors in favour of release of the records to the applicant. 

The applicant said that he considers that he has a right to access his daughter’s files. He said that he has always had concerns regarding the care provided to his daughter and he feels that it is important to ensure that similar issues do not arise again. He said that both he and his wife are concerned that their daughter may have been abused and are keen to know the extent and severity of the abuse. He said that he is advanced in years and therefore feels that he urgently needs to know the full extent of any abuse suffered by his daughter in the centre. 

Analysis and Finding

The issue I must consider in this case is whether the HSE was justified in finding that, having regard to all the circumstances, release of the records would not be in the best interests of the applicant’s daughter.

Before I consider that matter, I would like to make two comments on the HSE’s submissions. First, it is important to note at the outset that by making the relevant Regulations, the Minister has determined that the parent of an individual who belongs to the class of individual described in Regulation 5(b) of the 2016 Regulations shall have a right of access to personal information relating to that individual, subject to release being in the individual’s best interests having regard to all the circumstances. As such, while it is wholly relevant to consider the release of personal information as potential release to the world at large when considering whether, pursuant to section 37(5)(a), the public interest in granting a request outweighs the right to privacy of the individual to whom the information relates, it is not, in my view, appropriate to do so when considering whether a right of access exists pursuant to the 2016 Regulations. The Regulations require the request to be considered based specifically on the identity of the requester in such cases.

Secondly, while the HSE has explained why it considers that it would not be in the best interests of the applicant to access the records at issue, this is not, in my view, a factor that the HSE is entitled to consider when determining whether a right of access exists under the 2016 Regulations. Instead, the question it must consider is whether release would be in the best interests of his daughter.

On the substantive issue of whether the release of the records would be in the best interests of the applicant’s daughter, it is relevant to note the inherently private and sensitive nature of the records. As described by the HSE, the records outline the individual’s behaviour patterns, challenges and difficulties, personal intimacy matters, interaction with service users and staff members, social behaviours and personal habits. Having regard to their contents, I believe the HSE was justified in finding that the release of the records to the applicant would contravene his daughter’s right to have her dignity preserved. Given the private and sensitive nature of the records, I also find it very difficult to accept that the individual would consent to the release of the records if she was in a position to do so. Moreover, their release would not, in my view, be of benefit to the applicant’s daughter, particularly in circumstances where she is no longer resident in the relevant centre, and given the age of the records.

It is also relevant, in my view, that the HSHE engaged with the family outside of the FOI process and that it gave some assurance by confirming that there was no mention of or reference to a particular individual coming into contact with the applicant’s daughter during her time in the centre and that it addressed the family’s concerns regarding a number of incidents in relation to the applicant’s daughter. I consider it appropriate to have regard to these matters in light of the requirement in the 2016 Regulations that when considering whether release of the records would be in the individual's best interests, the decision maker must have “regard to all the circumstances”.

Having carefully considered the matter, I am satisfied that the HSE was justified in finding that, having regard to all the circumstances, release to the applicant of the records at issue would not be in the best interests of the applicant’s daughter. I find, therefore, that the 2016 Regulations do not provide for a right of access to the records sought and that the HSE was justified in refusing, under section 37(1) of the Act, the applicant’s request.

Decision

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

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.

 

Stephen Rafferty
Senior Investigator