Case number: OIC-114058-P0V9C8
21 March 2022
In a request dated 13 August 2021, the applicant sought access to her adult son’s medical records from the HSE. Her son had been an in-patient in the Mental Health Unit in a named hospital earlier that year. When she did not receive a response to her request, the applicant asked the HSE for an internal review. On 1 October 2021, the HSE issued a decision refusing access to the records on the basis of the exemption under section 37(1) of the FOI Act, stating that the release of records concerning the applicant’s son, would amount to the release of his personal information to the world at large. The applicant had provided a copy of her son’s written consent along with her original request; however, on consideration of this, the decision maker consulted with the treating consultant who stated that he could not satisfy himself that the consent given was informed consent. On 6 October 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 conducting 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 on the matter.
The review is concerned solely with whether the HSE was justified in refusing access to the records sought under the provisions of the FOI Act.
Section 22 (12)(b) of the FOI Act provides that when I review a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, the onus is on the HSE to satisfy me that its decision to refuse the request was justified.
Section 37(1) of the Act provides for the refusal of a request where the body considers that access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. I accept that the disclosure of the records at issue in this case would involve such a disclosure.
However, section 37(8) provides that, notwithstanding subsection (1), the Minister may provide by regulations for the grant of a 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 relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016). The Regulations provide that notwithstanding section 37(1), a request may be made for records, which involves the disclosure of personal information and shall, subject to the other provisions of the Freedom of Information Act 2014, be granted where the requester belongs to one of a number of classes, including the following:
“…the requester is a parent or guardian of the individual to whom the records concerned relates and that individual…
(i) at the time of the request is 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
(ii) by reason of that condition, incapacity or disability are incapable of exercising their rights under the Act.”
The Regulations stipulate that the request shall be granted, where in the opinion of the head, having regard to all the circumstances, release of the records would be in the individual’s best interests.
Currently, I am not in a position to make any finding on the above as the HSE has stated that in its original consideration of the applicant’s request, it did not consider the applicability of the Regulations. As a result, the applicant was not made aware of, nor was she afforded an opportunity to comment on, the potential applicability of the Regulations. In the circumstances, I consider that the appropriate course of action is to annul the HSE's decision and direct it to undertake a fresh decision-making process, having due regard to section 37(8) and the provisions of the 2016 Regulations.
For the benefit of the applicant, I note that the Central Policy Unit of the Department of Public Expenditure and Reform has published guidance on the application of S.I. 218 of 2016, available at https://foi.gov.ie/download/cpu-notice-25-access-to-records-relating-to-deceased-persons-prepared-under-section-378-of-the-freedom-of-information-act-2014/. Page 3 of the Guidance includes information on the 2016 Regulations relevant to the applicant’s circumstances. It states that before making a decision on whether to release records, it will often be necessary to consult with the subject of the records and take into consideration a number of factors set out in the note before reaching a decision.
It is also important to note that the mere fact of a requester being the parent or guardian does not mean that the requester is automatically entitled to access the records of their child. As I have outlined above, the Regulations stipulate that the request shall be granted where in the opinion of the head, having regard to all the circumstances, release of the records would be in the individual’s best interests.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the HSE in this case. I direct it to undertake a fresh decision making process in respect of the applicant’s request, having due regard to the provisions of the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016.
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.