Case number: OIC-58285-P3L2N2

Whether the Hospital was justified, under sections 35 and 37 of the Act, in refusing the applicant’s request for access to her late husband’s medical records

8 April 2020

Background

In a request dated 1 August 2018, the applicant sought access to her late husband’s medical records for the period of admission to the Hospital from March to July 2015. On 8 August 2018, the Hospital wrote to the applicant drawing her attention certain provisions of the FOI Act and related Regulations regarding access to records of deceased persons and asking her to address relevant issues. The applicant responded by letter of 24 August 2018.

On 7 January 2019, the Hospital refused the request under sections 35 and 37 of the Act. The applicant sought an internal review of that decision following which the Hospital affirmed its refusal of the request. On 22 October 2019, the applicant sought a review by this Office of the Hospital’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 submissions made by the applicant and to the submissions made by the FOI body 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 the question of whether the Hospital was justified, under sections 35 and 37 of the Act, in refusing the applicant’s request for access to her late husband’s medical records. 

Preliminary Matters

Before I address the substantive issues arising, I would like to make some preliminary points. Firstly, 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. As a consequence the descriptions I can give of the reasons for my findings in this case are necessarily limited.

Secondly, it is important to note that the release of a record 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 a record released under the Act may be put. 

Finally, 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.

Analysis and Findings

The Hospital refused access to the records sought on the basis that sections 35 and 37 applied.  I consider section 37 to be more relevant and I will address it first.

Section 37 Personal Information

Section 37(1) of the FOI Act provides, subject to the other provisions of the section, for the mandatory refusal of a request where access to the records sought would involve the disclosure of personal information relating to an individual other than the requester, including personal information relating to a deceased individual.

The Act defines the term "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 the body as confidential. The definition also contains a list of 14 specific types of information that is personal information, without prejudice to the foregoing definition, including information relating to the medical history of an individual.  I find that the release of the records at issue in this case would involve the disclosure of personal information relating to the applicant’s late husband and that section 37(1) applies.

Section 37(2)

There are some circumstances, provided for at section 37(2), in which the exemptions at section 37(1) do not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of their 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)

Section 37(5) of the 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 information would benefit the person to whom the information relates.

I see no basis for finding that the grant of the request would benefit the individual to whom the information relates and I am satisfied that section 37(5)(b) does not apply in this case.

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 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 [2011] 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. 

In her letter of 24 August 2018 to the Hospital, the applicant stated that her late husband executed his last will and testament while a patient in the Hospital. She stated she was seeking access to his medical records in order to ascertain his medical condition and mental capacity to give instructions and to execute his last will and testament during that time.

As noted in the Preliminary Matters section above, any reasons a requester gives for a request must generally be disregarded in deciding whether to grant or refuse an access request under the FOI Act.  In the context of determining whether to grant a request in the public interest under section 37(5)(a), this means that the reasons given for the request may be considered only insofar as they reflect a true public interest, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public. 

It seems to me that the applicant has identified what is essentially a private interest for seeking access to the records at issue. Nevertheless, the FOI Act recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they carry out their functions. Indeed, a public body, in performing any function under the Act, must have regard to, among other things, the need to achieve greater openness in the activities of public bodies, to promote adherence by them to the principle of transparency in government and public affairs and to strengthen the accountability of decision making in public bodies (section 11(3) refers).

On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - both in the language of section 37 and in 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.

The information at issue in this case is of an inherently private and sensitive nature. In the circumstances, and given that the release of records under the FOI is regarded, in effect, as release to the world at large as I have explained above, I find that the public interest in releasing the records does not, on balance, outweigh the privacy rights of the applicant’s late husband. I find that section 37(5)(a) does not apply in this case.

Section 37(8)

Section 37(8) provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform may provide by regulations for the grant of a 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, as amended (the Regulations).

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 and shall, subject to the other provisions of the FOI Act 2014, be granted, where the requester belongs to one of a number of classes, including the following:

"... the requester is the spouse or 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".  

A definition of the term “spouse” is included in the Regulations. As the applicant is the spouse of the deceased, the question I must consider in this case, therefore, is whether, 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. 

In May 2017, pursuant to section 48(1) of the FOI Act, the Minister for Public Expenditure and Reform published revised Guidance concerning access to records relating to deceased persons. Under section 48(3) public bodies must have regard to such guidance in the performance of their functions under the Act. The Guidance states that it is a matter for the decision maker to make such enquiries and engage in such consultation as is necessary to allow him or her to decide if the public interest would be better served by granting than by refusing the request. It suggests that certain factors should be taken into consideration when deciding if release is appropriate to the spouse or next of kin of the deceased, including:

  • 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 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
  • whether the requester can obtain the information they seek without accessing the records of the deceased
  • any other relevant circumstances that the requester may set out.

Furthermore, in considering the nature and confidentiality of 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 (the Medical Council Guide)).  The Medical Council Guide states that patient information remains confidential even after death and suggests that, if unclear whether the patient consented to disclosure of information after their death, it should be considered how disclosure of the information might benefit or cause distress to the deceased family or carers, along with the effect of disclosure on the reputation of the deceased and the purpose of the disclosure. 

It is plain from the Regulations, which refer to “all the circumstances” and from the factors specified in the Guidance published by the Minister, that such circumstances and matters, where relevant, cannot be excluded solely on the basis that they are not public interest factors.  

In its submission to this Office, the Hospital said it considered the applicant’s request in accordance with the relevant Regulations and Guidance. While I am cognisant of the requirements of section 25(3) that I take all reasonable precautions during the course of a review to prevent disclosure of exempt information, I can say that the Hospital said it took the following into consideration in its decision to refuse the information at issue:

  • the confidentiality of personal information withheld
  • whether the deceased would have consented to the release of the information to the requester when living
  • whether the deceased outlined in writing his consent to release of personal records
  • 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 information to be released

It is the Hospital’s position that the information at issue was given in confidence by the deceased.  The Hospital is also of the view that the deceased would not have consented to the release of the information when living. Having reviewed the medical records at issue, I am satisfied that their contents support the Hospital’s view.

Having carefully considered the provisions of the Regulations, the factors identified in the Guidance, the submissions from both the applicant and the Hospital, and the content and nature of the records, I am satisfied that in all the circumstances of this particular case, the public interest, including the public interest in the confidentiality of personal information, would on balance not be better served by granting than by refusing access to the information at issue.

In conclusion, therefore, I find that the Hospital was justified in refusing the applicant’s request for her late husband’s medical records under section 37(1) of the FOI Act. Having found section 37 to apply, I do not consider it necessary to consider section 35 in this case.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Hospital to refuse, under section 37(1) of the FOI Act, the applicant’s request for access to her late husband’s medical 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