Case number: OIC-108638-W9V4Y6

Whether the HSE was justified in refusing, under section 37 of the FOI Act, the applicant’s request for access to her late mother’s file in connection with the Fair Deal Scheme

 

OIC-108638-W9V4Y6

 

Background

 

In a request dated 25 January 2021, the applicant sought access to her late mother’s file in relation to the ancillary state support and nursing home loan (the Fair Deal Scheme). In a letter dated 3 March 2021 to the applicant, the HSE explained that the request was for personal information relating to a third party and that he request fell to be considered pursuant to section 37(8) of the Act and the associated Regulations.

 

It noted that the Regulations provide for a right of access to the records of deceased persons by certain categories of requester. It sought a copy of her late mother’s death certificate and evidence of her standing with regard to the administration of her late mother’s estate, or consent of the person administering the estate. While the applicant provided certain information in response, the HSE wrote to her again on 8 March 2021 and informed her that the information provided was not sufficient. It said that if she did not provide the required information, the request would be treated as one to which the Regulations did not apply.

 

On 1 April 2021, the HSE noted that the applicant had not provided the information sought and it refused the request under section 37(8).  The applicant sought an internal review of the refusal of her request, following which the HSE affirmed the refusal of the request, but on the ground that section 37(1) of the Act applied and that the regulations did not provide for a right of access in the particular circumstances of the case. On 8 June 2021, the applicant sought a review by this Office 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 outlined above and to the submissions made by both parties. I have decided to conclude this review by way of a formal, binding decision. I have also had regard to the contents of the records at issue which the HSE supplied to this Office for the purpose of conducting the review. In referring to the records at issue, I have adopted the numbering system used by the HSE in the schedule of records containing 54 pages which it provided to this Office.

 

 

Scope of Review

 

This review is concerned solely with the question of whether the HSE was justified in refusing, under section 37 of the Act, the applicant’s request for the relevant file relating to her late mother.

 

 

Analysis and Findings

 

The Legislation

Subsection (1) of section 37 requires, subject to the other provisions of the section, an FOI body to refuse a request where access to the records would involve the disclosure of personal information, including personal information relating to a deceased individual. However, under subsection (8), Regulations have been made by the Minister for Public Expenditure and Reform which provide for access by certain third parties to records of a deceased individual.

 

The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016), as amended (the Regulations). Among other things, 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:

 

  1. “the requester concerned belongs to one or other of the following classes:

 

  1. a personal representative of the individual acting in due course of administration of the individual’s estate or any person acting with the consent of a personal representative so acting,
  2. a person on whom a function is conferred by law in relation to the individual or his or her estate acting in the course of the performance of the function,

 

or

 

  1. the requester is the spouse or the next of kin of the individual and, in the opinion of the head [of the relevant FOI body], 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”.

 

The class of requester identified in part (b) above is the spouse or the next of kin of the individual. Regulation 8 of the 2016 Regulations defines “next of kin” as follows: 

  1. issue,
  2. parent,
  3. brother or sister,
  4. a niece or nephew, or,
  5. any other person standing nearest in blood relationship to the individual in accordance with section 71(2) of the Succession Act 1965 (No.27 of 1965).

The Regulations provide that, if two or more persons fall within that paragraph, each of them shall be regarded as next of kin of the particular individual. In other words, in this case each of the children of the deceased are regarded as her next of kin.

 

It is not disputed that all of the information at issue in this case comes within the definition of personal information in section 2 of the Act, nor is it disputed that the applicant is a daughter of the deceased and is considered to be the next of kin for the purposes of the Regulations. The issue to be considered, 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.

 

Pursuant to section 48(1) of the Act, the Minister for Public Expenditure and Reform published 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
  • would release 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 get the information they want without accessing the records of the deceased
  • any other relevant circumstances that the requester may set out.

 

The HSE’s position

In its submission to this Office, the HSE said that the applicant is neither the personal representative of the individual acting in due course of administration of the individual’s estate or acting with the consent of the personal representative so acting, nor is she a person on whom a function is conferred by law in relation to the individual or her estate acting in the course of the performance of the function.

 

It noted that the co-executors of the deceased’s will are another family member and a solicitor and that the applicant received the consent of the solicitor for the release of the file in question but not the consent of the co-executor. It argued that the solicitor’s consent is not valid as the solicitor would not have full knowledge of the contents of the entire file in the Nursing Home Subvention Office to include both medical and financial information. It accepts, however, that the applicant is the next of kin of the deceased.

 

The HSE said the records on the file “contain detailed financial information obtained during the Fair Deal process together with Care Needs Assessment etc.” It said the applicant has indicated that the reason she wishes to access the relevant records is to pay the HSE loan associated with the Fair Deal Scheme. It said records indicate that the co-executor of the will provided the family, including the applicant, with details of the nursing home bill, the fact that the bill had been paid by another sibling, and details of the amount repayable under the Fair Deal Scheme. It said that while the applicant has indicated that she wishes to repay the loan, this would not be a matter for her but for the executors of the will. It said that on that basis, it would not be possible to provide access to the full file of the deceased to include both financial and medical information.

 

The HSE added that there is nothing on file to indicate that the deceased had wished for the provision of her total financial information or her medical information contained on file to be made available to her family in general. It said the deceased has a nominate care representative and that this was not the applicant. It argued that in providing the information to the Fair Deal application Department, the deceased and her care representative would have done so with an expectation of confidentiality and that the information would be held under confidential and restricted access conditions.

 

The HSE further said that there is nothing on file to indicate that the deceased would have consented to the release of the information at issue to the applicant when living. It noted that there appears to be some disharmony in the family which has been discussed with the Nursing Home Support Scheme Office and noted again that the applicant is not the executor of the will. It said it is normally a specified family member who undertakes any financial dealings with the HSE in relation to Fair Deal Assessments on behalf of the person concerned if the person is not in a position to do so themselves.

 

The HSE further argued that there is no public interest in releasing all the financial information relevant to the deceased into the public arena under the FOI Act. It noted that release of such information under FOI is regarded as release to the world at large. It said it considers the applicant’s request is not one in the public interest but is rather a private interest.

 

The HSE said it took into account the requirements to keep such information extremely confidential and the expectation that this type of information will be held in confidence. The HSE explained that it is concerned to ensure that it continues to receive sufficient information in dealing with Fair Deal cases into the future and that members of the public have assurances that such information is held in confidence. The HSE noted that the file could contain personal information of individuals other than the deceased that may not be known to other family members.

 

Finally, the HSE said that it must respect the wishes of the deceased in deciding on the executors/co-executors of her Will and the fact that she nominated a legal advisor plus one other family member other than the applicant to undertake this function and that she had a care representative. The HSE said that the issue in question here has been dealt with by way of executing the Will and Grant of Probate and the information requested is available as far as can be ascertained in relation to communication that the applicant has received from the Solicitor concerned.

 

 

Analysis of the HSE’s position

It is important to note at the outset that by making the relevant Regulations, the Oireachtas has determined that the next of kin shall have a right of access to the records of deceased persons, subject to consideration of the public interest and all the circumstances. While I fully accept that the records at issue in this case are inherently private and confidential, it seems to me that by making specific provision for access to the records of deceased persons, the Oireachtas envisaged that the next of kin would have a potential right of access to all relevant records, including financial and medical records. Had it been intended that records of this nature would not potentially fall for release, such a restriction could easily have been provided for.

 

I also fully accept that as records released pursuant to the FOI Act are released without any restriction as to how they may be used, such release is regarded, in effect, as release to the world at large. This is true of all records released under FOI regardless of the identity of the requester. Indeed, it is also true of requests where the requester seeks his/her own personal information. Nevertheless, the fact remains that the Oireachtas saw fit to determine that access to the records of deceased persons shall be granted to certain categories of requesters, provided the requirements of the Regulations have been met. Accordingly, I do not accept that the fact that the release of records under FOI is essentially release to the world at large provides a reasonable ground for refusing access to a category of requester that the Oireachtas has determined should be granted access.

 

On the matter of where the public interest lies and the factors to be considered, this Office generally has regard to the obiter comments of Macken J. in 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. However, I must bear in mind that these comments were made in relation to the requirements of FOI legislation in general and not to the very specific and detailed provisions covering access by next of kin to the records of deceased persons. The Regulations and guidance make it clear that a range of matters such as whether the deceased would have consented to the release of the records to the requester when living, the nature of the records to be released, and "any other relevant circumstances" must be considered. Therefore, matters which may be seen as private interests cannot be excluded solely on the basis that they are not public interest factors.

 

In its submissions to this Office the HSE appears to place significant weight on the fact that the applicant is not the personal or care representative of the deceased, nor the Executor of her late mother’s Will. It should be noted that the Regulations provide a separate right of access for person(s) administering the estate of a deceased person and the next of kin. The Regulations do not require the next of kin to provide evidence of their standing with regard to the administration of the estate, where they are not acting in this capacity, nor the consent of the person administering the estate.

 

The HSE has also noted that there is nothing to indicate that the deceased would have consented to the release of the records to the applicant when living. As noted above, the HSE also noted that there is nothing on file to indicate that the deceased had wished for her records to be made available to her family in general. In circumstances where neither the Regulations nor the associated guidance require the next of kin, as requester, to provide evidence to suggest that such consent would have been forthcoming, it seems to me that it is entirely appropriate to draw conclusions from the particular circumstances of the case under consideration.

 

Having examined the records at issue in this case, I see nothing to suggest that the deceased would have withheld consent to the release of the records to her next of kin when living, nor do I see anything to suggest that release would damage the good name and character of the deceased. I note the HSE’s observation that that there appears to be some disharmony in the family. While this may well be the case in respect of the surviving family members, it is not indicative of the relationship between the applicant and the deceased.

 

I also note the HSE’s comments that the applicant is not the deceased’s nominated personal representative or the executor of her will and that it is normally a specified family member who undertakes any financial dealings with the HSE in relation to Fair Deal Assessments. While the applicant may not have been one of the designated individuals referred to by the HSE, this does not deprive the applicant from exercising her right of access under the Regulations as the next of kin of her late mother. In the circumstances, I find that no information has been presented to this Office to suggest that the deceased would not have consented to the release of her records to the applicant.

 

In the particular circumstances of this case, I am not satisfied that the HSE has justified its refusal of the applicant's request under section 37(1). In my view, 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 applicant's request, as the next of kin, for the records relating to her deceased mother. I therefore find that the HSE was not justified in refusing the applicant's request for those records.

 
Personal Information relating to other parties

A number of the relevant records held by the HSE in this case contain references to individuals other than the applicant’s late mother, primarily relating to other family members who acted on behalf of the deceased. I have set out a list of the third party personal information in the Appendix to this decision. The Regulations do not provide for a right of access to such information. I am satisfied that section 37(1) of the Act applies to this information.

 

Subsection (1) is subject to the other provisions of the section. Subsections (2) and (5) essentially serve to disapply subsection (1). Subsection (2) sets out various circumstances where subsection (1) does not apply while subsection (5) provides for the release of records to which subsection (1) applies where the body considers that on balance (a) the public interest in granting the request outweighs the public interest in protecting the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the individual to whom the information relates.

 

I am satisfied that none of the circumstances set out in subsection (2) arise in this case, nor do I consider that the release of the information would benefit the individuals concerned. It therefore remains for me to consider whether the public interest in granting access to the information would, on balance, outweigh the public interest in protecting the privacy rights of those individuals. 

 

As I have outlined above, this Office notes that a public interest should be distinguished from a private interest. Furthermore, McDermott J., in his December 2016 judgment in the case of F.P. v The Information Commissioner [2014 No. 114 MCA] which was subsequently upheld by the Court of Appeal, said that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that “the ‘public interest’ in granting access is not to be determined on the basis of the appellant’s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.”

 

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have also had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

 

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

 

Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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. it is also important to note that the release of a record under the FOI Act is, in effect, regarded, as release to the world at large, given that the Act places no constraints on the potential uses to which released records may be put.

 

I know of no public interest factors in favour of the release of the information that I have found to be personal information relating to third parties that would, on balance, outweigh the privacy rights of individuals concerned. I find, therefore, that the public interest in granting access to that information does not outweigh the right to privacy of the individuals to whom the information relates and that section 37(1) of the Act applies to that information.

 

 

 

Decision

 

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the HSE and direct it to release the records subject to the redaction of any third party personal information contained in the records, as outlined in the Appendix to this decision.

 

 

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 eight 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.

 

 

Stephen Rafferty

Senior Investigator