Case number: OIC-131565-Y5S5J5
20 December 2022
This case has its background in a previous review conducted by this Office, Case OIC-106320-W7W6F5. In that case, the Senior Investigator annulled the decision of the HSE to refuse, under section 15(1)(a) of the Act, the applicant’s request for hospital records relating to her deceased brother on the ground that the HSE had not taken all reasonable steps to ascertain the whereabouts of relevant records. The Senior Investigator directed the HSE to conduct a fresh decision making process on the applicant’s request, which it duly did.
In a separate decision dated 16 June 2022, the HSE informed the applicant that following searches for records relating to her mother, relevant records were identified which reference the deceased. It refused access, under sections 37 and 35 of the Act, to the records on the basis that they contained personal information relating to third parties, namely, the applicant’s mother and the deceased. Following the applicant’s request for an internal review, the HSE affirmed its original decision. On 17 October 2022, 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 correspondence between the applicant and the HSE as outlined above and to the correspondence between this Office and both parties. I have also considered the content of the records that were provided to this Office by the HSE for the purposes of this review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the HSE was justified in its decision to refuse access to hospital records relating to the applicant’s deceased brother under section 35 and 37 of the FOI Act.
Before I address the substantive issues, I would like to make the following preliminary comments.
First, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (examined below).
Secondly, I should explain that section 25(3) requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions. I am therefore required to limit the level of detail I can give in describing the withheld records. Equally, I must limit my description of the HSE’s submission regarding why it considers the records to be exempt.
Thirdly, it is important to note that the release of records under FOI is, in effect, regarded as release to the world at large given that the Act places no constraints on the uses to which the information contained in those records may be put.
Having regard to the issues arising in this case and the submissions made, I propose to address section 37 in the first instance.
Section 37(1) of the FOI Act provides for the mandatory refusal of a request where access to the records sought would involve the disclosure of personal information relating to an individual or individuals other than the requester, including personal information relating to a deceased individual. This does not apply where the information involved relates to the requester (section 37(2)(a) refers).
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 of Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. These categories include (i) information relating to the educational, medical, psychiatric or psychological history of the individual, and (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.
Due to the sensitive nature of the records, I cannot discuss their content in any detail, other than to say that the information at issue relates to the medical history of third parties other than the applicant i.e. the applicant’s mother and the deceased. Having carefully examined the records, I am satisfied that they comprise personal information pursuant to category (i) of the definition of personal information, information relating to the medical history of the individual. As such, the release of the records would involve the disclosure of personal information relating to an identifiable individual.
I note the applicant’s comments in her correspondence with the HSE that her mother’s details could be “blacked out” and that she solely sought her deceased brother’s file. However, I am satisfied that the only relevant file located by the hospital was the applicant’s mother’s medical file. I am also satisfied that any information about the deceased contained in this file is inextricably linked to the applicant’s mother’s medical history.
Accordingly, I find the records to be exempt under section 37(1) of the FOI Act.
However, that is not the end of the matter as subsection (1) is subject to the other provisions of section 37.
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. Section 37(2)(b) provides that section 37(1) does not apply if consent is made in writing by the individual to whom that information relates. The section further provides that consent should be established to the satisfaction of the head of an FOI body.
In its submissions to this Office, the HSE was of the view that the applicant’s mother had chosen not to share, with the applicant, the information sought by her in this request. I also note that the applicant did not offer any evidence concerning her mother’s consent to the release of her personal information [to the applicant]. In the circumstances of this case, I have no reason to believe that the third party has consented to the release of the records sought in accordance with section 37(2) of the Act. I do not consider it necessary or appropriate for this Office to approach individuals to seek their consent to the release of sensitive personal information. I am also satisfied that none of the other circumstances provided for in section 37(2) arise in this case. I find, therefore, that section 37(2) does not dis-apply the section 37(1) exemption in this case.
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 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. In the particular circumstances of this case, I find that section 37(5)(b) does not apply.
On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person(s) to whom the information relates.
In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to 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. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors  IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and that 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 relation to the issue of the public interest, it is also important to have 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 should be distinguished from a private interest.
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.
I am satisfied that the information at issue in this case is of an inherently private nature. Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find that the public interest in granting access to the records does not, on balance, outweigh the right to privacy of the applicant’s mother. I find, therefore, that section 37(5)(a) does not apply.
Section 37(8) and the 2016 Regulations
In the circumstances, I believe that I should address section 37(8) for completeness. As I outlined above, the records in this case relate to the applicant's mother and late brother. The applicant believes that she is next of kin of the deceased.
Section 37(8) of the FOI Act provides that notwithstanding subsection (1), the Minister may provide by regulations for the grant of a request where the individual to whom the records concerned relate 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) (2016 Regulations). The 2016 Regulations provide for the grant of access to the records of a deceased individual if the requester is the spouse or the next of kin of the individual and 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 the request.
Next of kin is defined in Regulation 9 of the Regulations as including (a) issue, (b) parents, and (c) brothers and sisters, of the person to whom the records relate in accordance with section 71(2) of the Succession Act 1965. Regulation 10 provides that the definition of next of kin in Regulation 9 shall operate so that, where more than one paragraph of it is applicable in a given case, the person falling within whichever paragraph is alphabetically in the first order shall alone be regarded as the next of kin of the individual concerned.
In its submissions to this Office, the HSE confirmed its position that the applicant’s mother is still alive and is next of kin of the deceased. As such, I am satisfied that the applicant’s mother is the next of kin of the deceased for the purposes of the 2016 Regulations, and that I need not give any further consideration to the matter. For the sake of completeness, I am also satisfied that the HSE has considered the applicability of the Regulations when processing the applicant's request.
In circumstances where I have determined that the records at issue are exempt under section 37(1) of the Act, it is not necessary for me to consider the applicability of section 35(1).
In conclusion, therefore, I find that the HSE was justified in refusing to release the records concerned under section 37(1) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE. I find that the HSE was justified in refusing, under section 37(1) of the FOI Act, the applicant’s request for access to medical records relating to her late brother.
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.