Decision
Ms X and Health Information and Quality Authority
From Office of the Information Commissioner (OIC)
Case number: OIC-159606-R4S8C7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-159606-R4S8C7
Published on
Whether HIQA was justified in refusing access, under section 37 of the FOI Act, to certain information contained in a statutory notification it received from a designated centre relating to an incident concerning the applicant’s late son
8 October 2025
In a request dated 16 December 2024, the applicant sought access to four categories of records held by HIQA relating to the death of her son who was in the care of a designated centre funded by the HSE. The four categories of records were:
1. Copies of all communications (including any attachments) exchanged between a named service provider and HIQA that relate to the circumstances of her son’s death, including Form NF01 which is used to notify HIQA of an unexpected death of a resident, for the period March 2024 to the date of the request.
2. Copies of any internal HIQA records such as internal correspondence, briefing notes, memoranda, or other documents that relate to this matter, for the period March 2024 to the date of the request.
3. Copies of any communications sent to HIQA relating to the service provider that refer to staffing levels of that service provider, for the period 2022 to the date of the request.
4. Copies of any communications exchanged between HIQA and the service provider that relate to the staffing levels of that service provider, for the period 2022 to the date of the request.
In a decision dated 15 January 2025, HIQA released four records in full to the applicant. It also part-granted access to one record (‘Record 2’). HIQA redacted personal information of individuals other than the applicant’s son from Record 2 under section 37(1) of the FOI Act. On 12 March 2025, the applicant sought an internal review of HIQA’s decision on the ground that the redactions were not justified in her view, that further records should exist, and that parts 3 and 4 of her request did not appear to be referenced in HIQA’s decision letter or the schedule of records provided to her. On 2 April 2025, HIQA varied its original decision. It granted access to further information in the records previously released to the applicant. It also identified six further records it deemed relevant to the applicant’s request and granted access to two of these records in full. It refused access to the remaining four records, which it described as internal personnel records, under section 37(1) of the Act. In referring to the records at issue, I have adopted the numbering system used by HIQA in the schedule of records it released to the applicant with its internal review decision.
On 29 May 2025, the applicant applied to this Office for a review of HIQA’s decision to redact certain information from Record 2. In her application for review, she said that she was seeking access to this information in order to understand what happened to her son, and that there is a compelling public interest in releasing the remaining redacted information given the highly unusual and serious circumstances involved. During the course of this review, HIQA released some further information from Record 2, as it was of the view that the information either did not concern the third party, or information concerning the third party could be separated from the personal information of the applicant’s son. HIQA considers the remaining redacted information is exempt under section 37 of the FOI Act.
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 to this Office by both parties. I have also had regard to the content of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether HIQA was justified in redacting certain information contained in Record 2 under section 37 of the FOI Act.
I wish, in the first instance, to express my condolences to the applicant on the tragic loss of her son.
Secondly, while I am required by section 22(10) of the FOI Act to give reasons for my decision, section 25(3) provides that the Commissioner must take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be an exempt record. Accordingly, the details I can provide of the contents of the record at issue and of HIQA’s submissions in this case are somewhat limited, as are the reasons I can give for my decision.
The record at issue in this case, Record 2, is described by HIQA as a statutory notification received by the Office of the Chief Inspector within HIQA from the designated centre relating to an incident involving the applicant’s late son.
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned 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 (commonly known as joint personal information).
Section 2 of the FOI 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. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the foregoing definition, constitute personal information, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual.
As noted above, Record No. 2 is a statutory notification made to HIQA which contains details in respect of an incident which occurred in a residential designated centre. Having examined the information redacted by HIQA, I am satisfied that it contains the personal information of a specified third party and/or joint personal information of that third party and the applicant’s son. I find, therefore, that section 37(1) applies to the information refused by HIQA. However, this is not the end of the matter as section 37(1) is subject to the other provisions of section 37, which I will examine below.
Section 37(2) provides that section 37(1) does not apply if—
(a) the information concerned relates to the requester concerned,
(b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester,
(c) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
(d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or
(e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual.
In her submissions to this Office, the applicant said that she had corresponded with HIQA regarding one of the records released following HIQA’s internal review decision (Record 6). She said that this record consisted of an email from one HIQA inspector to another that states “The resident who perpetrated the assault is the only resident now in the house so no risk as such to any others and the resident had no previous history of making such assaults.” She said that she asked HIQA about the statement regarding no history of assault, and HIQA had responded by saying that the comment was based on the inspector’s review of the notification received by HIQA, the absence of previous incidents at the location, and the assurance given by the person in charge. The applicant said that this strongly suggests that the notification she is seeking (Record 2) in unredacted form includes a statement that the resident had no prior history of assault. Referring to section 37(2)(c) of the FOI Act, the applicant said that, given similar information was already released to the world at large in Record 6, the personal information exemption cannot be applied to the same or similar content in the notification. She said that since Record 6 was effectively available to the public at large, with no restrictions on its use, a similar statement contained in the notification (Record 2) cannot be classed as personal information.
In its submissions to this Office, HIQA said that the redacted information in Record 2 is not the same as that contained in Record 6, and therefore section 37(2)(c) does not apply. As outlined above, due to the requirements of section 25(3) of the FOI Act, I am limited in the extent to which I can describe the information redacted in Record 2. However, I can say that it does not contain the same or similar information as that in Record 6. I am therefore satisfied that section 37(2)(c) does not apply to the information at issue. Furthermore, I am satisfied that none of the circumstances identified in section 37(2) arise in this case.
Section 37(5) provides that access to the personal information of a third-party may be granted where, on balance, (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates. No evidence has been presented to this Office to suggest that the release of the information withheld would be to the benefit of the third party concerned, nor do I consider this to be the case in the context of the record at issue. I therefore find that section 37(5)(b) does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) 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. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, the release of records under the FOI Act must be regarded, in effect, as release to the world at large given that the Act places no constraints on the uses to which a record released under the FOI Act can be put. With certain limited exceptions provided for under the Act, such as under sections 37(2)(a) and 37(8), FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party/third parties concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In her submissions to this Office, the applicant said that the record consists of a notification made by the service provider to HIQA following the death of her son while in the care of the service provider. She said that she was seeking access to the redacted information in order to understand what happened to her son. She said that there is a compelling public interest in releasing the redacted content, given the highly unusual and serious circumstances involved.
In its submissions to this Office, HIQA said that, in this particular case, the information is medical information relating to private rather than public matters, therefore falling within a category of personal information specifically listed in the definition of that term in section 2(1) of the FOI Act. It said that the information is of an intensely private nature. HIQA said that there does not appear to be a public interest in making these intensely private details available to the world at large. It said that rather, this disclosure could undermine public confidence in HIQA. It said that release of these details could deter registered providers from making full and frank disclosure of sensitive details to HIQA, which enable it to carry out its statutory functions. HIQA said moreover it considers that the public interest in openness and transparency has been met by the release of the rest of the information in the record and other records provided to the applicant.
The FOI Act recognises a public interest in ensuring the openness, transparency, and accountability of public bodies in how they perform their functions. I accept that there is a public interest in the public being able to observe and assess how a public body conducts itself in relation to the care of vulnerable individuals and/or how a public body (in this case HIQA) reviews and inspects such care following a notification such as the one at issue in this case. I also fully accept that there is a strong public interest in family members being informed about the circumstances of the death of their loved ones and of the level of care and treatment afforded by a public body and/or service provider.
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 FOI 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.
Having regard to the information already provided to the applicant, it seems to me that the public interest in enhancing the transparency and accountability of HIQA in relation to its handling of the relevant notification has been met to a large extent through the release of those records which HIQA provided to the applicant. In processing her FOI request, it seems to me that HIQA has endeavoured to release the records to the greatest extent possible whilst seeking to protect the privacy rights of the third party. The question I must consider is whether the public interest in releasing the remaining information withheld by HIQA outweighs, on balance, the public interest in protecting the privacy rights of the third party concerned. Having regard to the sensitive nature of the information at issue and to the significant protection afforded to privacy rights, and to that fact that the release of the information must be regarded effectively as release to the world at large, I am satisfied that it does not. I find, therefore, that section 37(5)(a) does not apply.
Section 37(1) is also subject to section 37(8) of the FOI Act. Section 37(8) provides that, notwithstanding subsection (1), the Minister for Public Expenditure, Infrastructure, Public Service Reform and Digitalisation (the Minister) may provide by regulations for the grant of an FOI request where the individual to whom the record concerned relates is deceased and the requester concerned is a member of a class specified in the regulations. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (the 2016 Regulations). The Regulations provide that, notwithstanding section 37(1), a request may be made for records which involve 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 the requester is the spouse or the next of kin of the individual and the FOI body considers, 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.
In its submissions to this Office, HIQA said that the personal information of the applicant’s son was released to the applicant. The relevant information refused by HIQA concerns another party and/or contains joint personal information as outlined above. Neither section 37(8) nor the 2016 Regulations provide a basis for releasing records, or parts of records, which contain personal information relating to a third party. Accordingly, I am satisfied that section 37(8) of the Act does not apply in the circumstances of this case.
In conclusion, while I understand that this may be a disappointing outcome for the applicant, I find that HIQA was justified in its decision to refuse access to the remaining information contained in Record 2 under section 37(1) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of HIQA to refuse access to the withheld information at issue 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.
Richard Crowley
Investigator