Case number: 180442
On 27 November 2017 the applicant submitted a request to the HSE, through her solicitors, for a copy of her mother's medical records from 2013 onwards. A period of more than eight months elapsed before the HSE issued a decision on the request on 17 August 2018 in which it refused access to the records sought under sections 35 and 37 of the FOI Act.
The applicant sought an internal review of the HSE's decision on 21 September 2018 following which the HSE affirmed its original decision. The applicant sought a review by this Office of the HSE's decision on 10 October 2018.
During the course of the review, the HSE informed this Office that the applicant's mother had since been made a ward of court and that the applicant is not part of the committee responsible for acting on her behalf. On 30 November 2018 Ms Hannon of this Office informed the applicant of her view that the HSE was justified in refusing access to the records sought under section 37 of the FOI Act. She also invited the applicant to make further submissions on the matter and the applicant did so.
Having regard to those submissions, I have decided to conclude this review by way of a formal, binding decision. In conducting my review, I have had regard to the correspondence between the HSE and the applicant as outlined above and to correspondence between this Office and both the HSE and the applicant on the matter.
This review is concerned solely with the question of whether the HSE was justified in refusing to grant the applicant access to her mother's medical records from 2013 onwards under sections 35 and 37 of the FOI Act.
In light of the circumstances arising in this case, it is important to note that a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision. A such, I am satisfied that it is necessary for me to have regard to the fact that the applicant is now a ward of court, regardless of the fact that she was not a ward of court at the time the applicant submitted her request to the HSE.
Having regard to the nature of the records at issue in this case, I will consider the applicability of section 37 in the first instance.
Section 37(1) provides that, subject to the other provisions of the section, a public body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Given the nature of the records sought, it is clear that their disclosure would involve the disclosure of personal information relating to the applicant's mother. Accordingly, I find that section 37 (1) applies to the records at issue.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances 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 party has not consented to the release of that 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. I find that section 37(2) does not apply to the withheld records.
I turn now to section 37(5) which also provides for exceptions to the section 37(1) exemption.
Section 37(5) of the FOI 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 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 individual aforesaid
As no evidence has been presented to this Office to suggest that the release of the records sought would benefit the applicant's mother, I find that section 37(5)(b) does not apply. Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. In relation to the issue of the public interest, it is 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 ("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.
It is also important to note that with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner  IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put. In the circumstances, I consider it appropriate to regard any release of the records concerned as being effectively, or at least potentially, to the world at large. It is also important to state that the records contain information of an inherently private and sensitive nature relating to the applicant's mother.
The FOI Act recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. Indeed, an FOI 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 the public interest in the protection of the right to privacy 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.
Given the inherently private nature of the records sought and having regard to the fact the release under FOI is, in essence, release to the world at large, I am satisfied that the public interest in granting access to the records sought does not, on balance, outweigh the significant public interest in protecting the privacy rights of the applicant's mother. I find, therefore, that section 37(5)(a) does not apply.
Section 37(8) provides that, notwithstanding section 37(1), the Minister for Finance 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 Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. No. 218 of 2016) make provision for access by parents or guardians to personal information in relation to persons in certain circumstances.
Regulation 5(b) of the 2016 Regulations provides for a right of access by the parent or guardian of persons who at the time of the request have, or are subject to, a psychiatric condition, mental incapacity or severe physical disability, the incidence and nature of which are certified by a registered medical practitioner, and by reason of that condition, incapacity or disability, are incapable of exercising their rights under the FOI Act.
The applicant stated that she was regarded as her mother's next of kin for a number of years before an application was made to the High Court for her mother to be made a ward of court. She submitted that as next of kin she has a right to her mother's files and that she applied for access to the records well before Ms. A became a ward of court. As I have outlined above, the Regulations provide for a right of access to personal information relating to a person who is subject to mental incapacity by the guardian of that person. The applicant is not the guardian of her mother. As such, I find that no right of access exists under the Regulations.
In conclusion, therefore, I find that the HSE was justified in its decision to refuse access to the records at issue under section 37(1) of the Act. Having found section 37 (1) to apply, I do not consider it necessary to consider section 35 of the FOI Act.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the HSE's decision to refuse the applicant's request for access to her mother's medical records under section 37(1) of the FOI Act.
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.