Case number: 190235

Whether the HSE was justified in its decision to refuse the applicant's request for a report of an assessment prepared by a consultant psychiatrist relating to her son under section 15(1)(i) of the FOI Act on the ground that the record had already been released to the applicant and is available to her

 

 

14 June 2019

 

Background

 
On 16 February 2019 the applicant made a request for a report of an assessment prepared by a named consultant psychiatrist relating to her adult son. I understand that the applicant also provided the HSE with her son's signed consent for her to seek access to his medical records on his behalf.
 
On 24 April 2019 the applicant sought an internal review of the deemed refusal of her request as the HSE failed to issue a decision within the required time-frame. On 13 May 2019 the HSE issued a decision in which it refused the request under section 15(1)(i) of the FOI Act on the ground that the record had already been released to the applicant. On 15 May 2019, it issued an internal review decision affirming the original decision. It stated that the content of the report requested had been shared with her by her son’s consultant psychiatrist.
 
The applicant sought a review by this Office of the decision on 15 May 2019. 
 
I have now completed my review of the HSE's decision. In conducting the review, I have had regard to the correspondence between the HSE and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the HSE on the matter.
 
 

Scope of Review

 
This review is concerned solely with whether the HSE was justified in its decision to refuse access to an assessment prepared by a named consultant psychiatrist relating to the applicant's adult son under section 15(1)(i) of the FOI Act on the ground that the record sought has already been released to her
 
 

Analysis and Findings

 
Section 15(1)(i) of the FOI Act provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester where the records are available to the requester concerned. For the section to apply, I would expect the public body to be in a position to show that (i) the records sought were already released and (ii) they are available to the requester.
 
In her application for review, the applicant stated that she had not previously been provided with the record at issue. She stated that only a summary report had been provided to her daughter by her son’s consultant psychiatrist. 
 
Ms Whelan of this Office contacted the HSE in an effort to ascertain whether the full report had been released. In response, the HSE conceded that the full report as requested had not been released.
 
Accordingly, I find that the decision of the HSE in this case was not justified under section 15(1)(i) of the FOI Act. However, I do not consider it appropriate to simply direct the release of the record. Indeed, I note the HSE's view that it was not in a position to release the record in full as it considers it to contain information which may be exempt under the FOI Act and that the consultant psychiatrist would have serious concerns about releasing the record in full. Instead, I find that the most appropriate course of action is to annul the HSE’s decision and to direct it to conduct a new decision-making process on the request. The normal rights of internal review and appeal to this Office will apply to the new decision. 
 
 

Decision 

 
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 the HSE to conduct a new decision-making process on the applicant’s FOI request. 
 
 

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