Case number: 170539

Whether the HSE was justified in its decision under section 37 of the FOI Act to refuse access to medical and psychiatric records of the applicant's late mother

20 March 2018

Background

On 18 April 2016, the applicant submitted an FOI request to the HSE for access to records of her late mother who was a patient in a (named) psychiatric hospital from 1979 to 1981. The applicant stated that there may also be further records which relate to her mother dating up to 1993. On 10 May 2016, the HSE refused access to the records under section 15(1)(a) of the FOI Act, on the basis that the records could not be found after all reasonable steps to locate them were taken. On 30 May 2016, the applicant requested an internal review of the HSE's decision. On 20 July 2016 and 16 August 2016, the HSE wrote to the applicant to say it was making enquiries with retired staff members to try to locate the records. The HSE also advised the applicant of her right to apply to this Office for a review as the statutory time frame for making a decision had expired. Following further enquiries, the HSE located the records.

On 11 November 2016, the HSE wrote to the applicant and requested that she provide proof of her identity and her relationship to her late mother (in the form of a birth certificate) to enable it to make a decision in relation to her FOI request. The applicant provided the requested documents. On 20 May 2017, the HSE issued its internal review decision refusing access to the requested records under section 37(1) of the Act. On 20 November 2017, the applicant applied to this Office for a review of the HSE's decision.

As submissions have been received from the HSE and from the applicant's solicitor, I consider that this review should now be brought to a conclusion by way of a formal, binding decision.

In conducting this review, I have had regard to the submissions of both parties and to correspondence between this Office and the applicant, the applicant's solicitor and the HSE. I have had regard to the contents of the records identified by the HSE as falling within the scope of the applicant's request, copies of which were provided to this Office for the purpose of this review. I have also had regard to the provisions of the FOI Act. 

Scope of Review

This review is concerned solely with the question of whether the HSE was justified under section 37 of the FOI Act in refusing to grant access to the records sought by the applicant relating to her late mother.

Preliminary Matters

Before I make my findings in this case, I wish to make the following points on certain issues arising in this case.

The FOI Act provides that the internal review of a decision shall be completed within three weeks of the receipt of the request for review and that notice of the decision must be issued within the same period. In this case, it took the HSE almost one year to issue its internal review decision. Notwithstanding the efforts it made and the apparent difficulties which the HSE encountered in locating the records, the delays in this case were unacceptable. As this Office has previously stated, it is incumbent on FOI bodies to put the resources in place in order to be able to deal with FOI requests and reviews in accordance with the statutory time limits.

Section 11 of the Act provides for a right of access to records held by FOI bodies. Under section 12 of the Act, a person who wishes to exercise the right of access must ensure that the request contains sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. However, requests for information, as opposed to requests for records, are not valid requests under the Act. The FOI Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought.

The records the subject of my review are those identified by the HSE as records of the applicant's late mother who was a patient in a (named) psychiatric hospital from approximately 1979 to 1981. I cannot confirm that the records contain the information which the applicant believes may be on the file at issue.

Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.

Under FOI records are released without any restriction as to how they may be used and thus, FOI release is regarded, in effect, as release to the world at large.
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.

Analysis and Findings

Section 37 - Personal Information 
Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information (including personal information of a deceased individual). Section 2 of the 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. The definition also contains a list of 14 specific types of personal information including information relating to the medical and psychiatric history of the individual. 

Section 37(7) provides that access to a record which relates to the requester shall be refused if access would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester. Where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information relating to another party (or parties), and where it is not feasible to separate the personal information relating to the requester from that relating to the other party (or parties), it can be described as joint personal information and section 37(7) must be considered.

The records at issue consist of psychiatric reports, medical notes, nurses' notes, medical correspondence and correspondence in relation to a proposed adoption. I am satisfied that the records contain the personal information of the applicant's late mother. Insofar as a small number of the records contain references to the applicant, her personal information is inextricably linked to that of her birth mother and it is not feasible to separate the two. There are also references to other identifiable family members and third parties in a number of the records. I am satisfied that this information is personal information relating to those individuals. I find that the records are exempt from release on the basis of section 37(1), subject to the provisions of sections 37(2), 37(5) and 37(8) which I examine below.

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) the Public Interest
I turn now to section 37(5) which also provides for exceptions to the section 37(1) exemption. 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.
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 individuals to whom the information relates. 

In her submission to this Office, the applicant states that she never got to know her birth mother as she was adopted as a baby and she does not know the identity of her father. According to the applicant, release of the records would help her to find out details of her birth mother, may help her to establish her father's identify and further her enquiries in respect of the death of her late mother. The applicant accepts that the records are of a confidential nature; however, she argues that the exceptional circumstances in this case justify release of the records. 

In its submission to this Office, the HSE argues that it is of great importance that clients and their families feel that they can engage with a high degree of confidentiality and that people feel that information given to the HSE will be treated with the appropriate level of confidentiality. It identifies this as being of particular importance to clients of its Mental Health Service, which is relevant here. The HSE argues that the public interest in openness and accountability of public bodies as well as the public interest in ensuring that persons can exercise their rights under FOI is not sufficiently strong to outweigh that of protecting the privacy of the individual to whom the records relate.

In considering the public interest test at section 37(5)(a), I must have regard to the judgment 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"). In that case, the applicant made the request on behalf of her father who sought to trace the identity of his birth mother. In obiter comments Fennelly J. distinguished between a request made by a "private individual for a private purpose" and a request "made in the public interest."  He noted that whether people generally should be granted access to information on their origins (which the Commissioner had found as being a public interest factor in favour of the release of the records) was a matter of policy which it would have been possible to include in the legislation. As it had not been so included, it was not open to the Commissioner to adopt a general policy in the public interest. Macken J. stated that in her view a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law must be distinguished from a private interest.

The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. 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.

I am conscious of the distress that the circumstances of her mother's situation and her death has caused to the applicant. However, I find that, in the circumstances of this case and having regard to the judgment of the Supreme Court in the Rotunda case, the right to privacy of the individuals whose personal information is in the records outweighs the public interest in granting the applicant's request.
Section 37(8) - Access to the personal information of deceased persons
Where an FOI body refuses access to records relating to a deceased person under section 37(1) of the Act; it must also consider section 37(8) and the Regulations on records of deceased persons. Section 37(8) provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform ("the Minister") may provide by Regulations for the grant of an FOI request in certain circumstances where the individual to whom the information relates is dead. The current Regulations SI 218 of 2016 came into effect on 27 April 2016. The transitional provisions in the 2016 Regulations provide that any action commenced under the previous Regulations SI 387 of 2009 shall continue to be performed and shall be completed as if the previous Regulations had not been revoked. The applicant made her FOI request on 18 April 2016; therefore, the previous Regulations SI 387 of 2009 apply in this case.

Article 4 of the Regulations sets out the classes of person to whom records relating to a deceased person may be disclosed. Article 4(1)(b)(iii) provides for release of records of deceased persons "to the spouse or next of kin of the individual... where having regard to all the circumstances and to any relevant guidelines published by the Minister, 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." The Regulations require that the next of kin is the person or persons standing nearest in blood relationship to the deceased individual in accordance with section 71(2) of the Succession Act 1965.

The HSE's internal review decision maker did not expressly refer to section 37(8) or the Regulations in her decision. However, before the decision issued she wrote to the applicant (on 11 November 2016) and drew attention to the provisions of the 2016 Regulations and to the Guidelines published by the Central Policy Unit of the Department of Public Expenditure and Reform in May 2016 on issues which have to be taken into consideration in deciding whether a requester is an appropriate person to access the records requested having regard to all the circumstances.

In its submissions to this Office, the HSE states:

"The HSE wrote to the applicant on 11 November 2016 seeking documentary evidence of her relationship with the deceased. The applicant furnished a copy of her birth certificate and her adoption certificate which show the date the deceased gave birth to the applicant and the date the applicant  was adopted. An adoption order secures in law the position of the child in the adoptive family. The child is regarded in law as the child of the adoptive parents as if they were born to them. Adoption severs all legal links between the child and their parent. As part of the internal review, having considered the provisions of section 37(8)(b) of the FOI Act, the relevant Regulations in place at the time (SI 387 of 2009), and the documentary evidence supplied to the HSE by the applicant, the HSE was satisfied that the applicant's request was not one to which the provisions of Section 37(8)(b) applied."

The HSE should have included its consideration of section 37(8) and the 2009 Regulations in the internal review decision, even if it was satisfied that the applicant was not entitled to the records under those Regulations. However, having regard to the HSE's letter to the applicant of 11 November 2016 and the HSE's  submissions to this Office, I accept that the internal reviewer was aware of and considered section 37(8) and the Regulations in reaching her decision. I am satisfied that it not necessary to annul the HSE's decision and direct it to undertake a fresh decision making process having regard to section 37(8) and the Regulations. I will, therefore, consider whether section 37(8) and the Regulations apply.

Following receipt of the HSE's submissions, this Office wrote to the applicant through her solicitor and outlined the HSE's position that the adoption order severed the legal link between the applicant and her birth mother so that the applicant is not the deceased's next of kin for the purposes of the Regulations. In reply, the applicant argued that she was adopted within the same family by a relative and she is the deceased's next of kin. Neither the applicant nor her solicitor have provided me with any details to support her assertion that she is still the next of kin of the deceased under the 2009 Regulations. In order to consider whether section 37(8) of the FOI Act gives the applicant a potential right of access to the records of the deceased in this case, I will address the question of the adoption.

The legal consequences of adoption
Section 58 of the Adoption Act 2010 provides:

"Upon an adoption order being made...
(a) the child concerned shall be considered, with regard to the rights and duties of parents and children in relation to each other, as the child of the adopters born to them in lawful wedlock, and
(b) with respect to the child, the mother or guardian of the child shall...lose all parental rights and be freed from all parental duties."

According to Shannon in Child Law  (2nd ed, Round Hall 2011) at 448:

"The making of the adoption order effectively and comprehensively severs the legal nexus between the natural parent and the child, so that the former will retain no rights or duties in respect of the child. ... In effect, therefore, following the adoption of a child by the natural mother, the natural father is no longer a "parent", and therefore any maintenance order previously made ceases to have effect. Nor will the estate of a natural parent (not being an adopter of the child) be deemed liable under the Succession Act 1965 the (Status of Children Act 1987 notwithstanding) for any legacy payable on intestacy."

I accept the HSE's position that the adoption order severed the legal link between the applicant and her birth mother and therefore the applicant is not the deceased's next of kin for the purposes of the Regulations. I find that the applicant is not entitled to the records under section 37(8) of the Act.

There is a further complication arising from the fact that it is the 2009 Regulations and not the 2016 Regulations that apply here given the date of the applicant's request. While I consider it unlikely that it would make any material difference to the decision in this case, I should point out that this Office previously identified an anomaly in the 2009 Regulations in the manner in which next of kin is determined. While this is a complex technical issue, essentially those Regulations as drafted applied a rule in Section 71(2) of the Succession Act, 1965 that next of kin is the person or persons standing in nearest blood relationship to the deceased person. This may result in different outcomes from those cases to which the 2016 Regulations apply.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the HSE and find that the requested records are exempt from release under section 37 of the FOI Act. 

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.

Elizabeth Dolan
Senior Investigator