16 May 2018
Whether the Hospital was justified in its decision to refuse access to the applicant's medical records on the basis that sections 37(3) and 37(4) of the FOI Act applied
On 8 November 2016 the applicant requested access to his records held by the Hospital. In its decision of 14 December 2016, the Hospital refused access to the records on the basis that section 37(3) of the FOI Act applied. In accordance with section 37(4) of the Act, the Hospital offered the applicant an opportunity to nominate a health professional to access the records concerned on his behalf. The applicant wrote to the Hospital on 6 December 2017 and in response, the Hospital issued an internal review decision on 27 January 2018. In its decision, the Hospital affirmed the original decision of December 2016 and stated that the applicant has the right to nominate a health professional of his choice "to access these records on your behalf and release them to you" in the professional capacity of the health professional. The applicant made an application for review to this Office.
In conducting my review, I have had regard to the submissions of the Hospital and the applicant, and to correspondence between the applicant and the Hospital. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. I consider that the review should now be brought to a close by the issue of a formal, binding decision.
Scope of Review
The review relates solely to whether the decision of the Hospital to refuse access to the records in the applicant's medical file was justified on the basis of sections 37(3) and 37(4) of the FOI Act. Given the content and context of the records, I will treat the records as one record, as it would be misleading and impracticable in this case to consider parts in isolation from other records.
In his submission, the applicant explained why he wanted access to the records. I see no reason to provide details of the applicant's reason in this decision. However, section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions. In this case, however, requests falling to be refused under section 37(3) are not subject to a public interest balancing test.
While the FOI Act provides for a right of access to records held by FOI bodies, requests for information, as opposed to requests for records, are not valid requests under the Act. The Act does not require FOI bodies to create records if none exist and does not oblige FOI bodies to answer general queries. Furthermore, the Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought. The Act provides for a right of access to records held. However, it also places an onus on requesters to provide sufficient particulars in relation to the information concerned to enable the requested record to be identified (my emphasis).
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.
Analysis and Findings
Sections 37(3) and 37(4)
Section 37(3) of the FOI Act provides:
"Where an FOI request relates to –
(a) a record of a medical or psychiatric nature relating to the requester concerned, or
(b) a record kept for the purposes of, or obtained in the course of the carrying out of, social work in relation to the requester,
and, in the opinion of the head concerned, disclosure of the information concerned to the requester might be prejudicial to his or her physical or mental health, well-being or emotional condition, the head may decide to refuse to grant the request."
Section 37(4) provides:
"Where, pursuant to subsection (3), a head refuses to grant an FOI request –
(a) there shall be included in the notice under section 13(1) in relation to the matter a statement to the effect that, if the requester requests the head to do so, the head will offer access to the record concerned, and keep it available for that purpose, in accordance with section 13(3) to such health professional having expertise in relation to the subject-matter of the record as the requester may specify, and
(b) if the requester so requests the head, he or she shall offer access to the record to such health professional as aforesaid, and keep it available for that purpose, in accordance with section 13(3)."
Section 13(3) provides for the records to be kept available for the purposes of access for a period of 4 weeks after the making of a decision.
It seems to me that the intention of section 37(4) is to allow an appropriate health professional with relevant expertise to decide whether such sensitive information might be made available to requesters in such a manner that seeks to avoid the harms identified in section 37(3). While this Office takes the view that there must be evidence presented in support of the opinion that release of the records might be prejudicial to the requester’s physical or mental health, well-being or emotional condition, it is noteworthy that the threshold for meeting the exemption is quite low as it is sufficient for the body to show that release of the records might give rise to the harm identified.
I must base my decision in relation to whether disclosure of the information in the records might be prejudicial to the applicant's physical or mental health, well-being or emotional condition, on the evidence provided by both the applicant and the Hospital.
I have considered the evidence presented by the Hospital in support of its view that section 37(3) should apply, and I note that the applicant has not provided any evidence which might serve to refute the Hospital's evidence. I do not consider it appropriate here to elaborate on the Hospital's reasons for applying this section of the Act, or to describe in any detail the contents of the records to which section 37(3) has been applied. The Hospital provided this Office with a letter from a consultant psychiatrist. The Hospital stated that it is willing for a consultant psychiatrist to meet with the applicant to discuss the contents of his records. In these circumstances, I am satisfied that the Hospital has justified its reliance on section 37(3) of the FOI Act.
I find that the Hospital was justified in refusing access to the records on the basis that sections 37(3) and 37(4) of the FOI Act apply. The Hospital's offer under section 37(4) to offer access to the records to a health professional, if requested by the applicant, remains. I note, however, that some of the records at issue contain information relating to third parties. I am satisfied that those parts of the records which identify individuals other than the applicant and certain personal information about them are exempt under section 37(1) and that there is no overriding public interest in release of such information that could outweigh the privacy rights of the persons concerned.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Hospital that the applicant's medical records are exempt from release under section 37(3) 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 by the applicant not later than four weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.