Decision
Mr. A & The Health Service Executive (HSE)
From Office of the Information Commissioner (OIC)
Case number: OIC-150549-R2B7Z0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150549-R2B7Z0
Published on
Whether the HSE was justified in refusing parts of the applicant’s request for access to records in a complaint file related to his Mother’s care.
7 October 2025
In a request dated 22 December 2023, the applicant sought access to a complaint file from a relevant HSE mental health service, which concerned an internal review carried out by a named Doctor related to a complaint raised by the applicant concerning his mother’s care.
On 10 and 16 January 2024, the applicant followed up in relation to his request. The same day, the decision maker responded to him and stated that in order to access records related to his mother, the applicant would need to provide an up to date copy of her signed consent, as the one he had provided related to a previous FOI request from 2022. On 6 March 2024, a new copy of consent signed by the applicant’s mother was provided. On 22 March 2024, an acknowledgement of the signed consent was issued by the HSE to the applicant.
In a decision dated 9 April 2024, the HSE partially granted the applicant’s request. It scheduled 121 pages of records within the file and refused access to certain information across the file on the basis of sections 37(1), 35(1)(a), 30(1)(a) and additionally noted that certain information was already in the applicant’s possession and that accordingly such information was refused under section 15(1)(i). On 10 May 2024 the applicant submitted an internal review request to the HSE. In his application for review, the applicant made a number of observations around the handling of his complaint by the HSE. The applicant also argued that critical information was missing from the complaint file, in particular he alleged that the file was provided to him with over 80% of it redacted, and that no substantive explanation or justification was provided for these redactions.
On 4 July 2024, the HSE issued its internal decision on the matter. It upheld the original decision on the basis of section 37(1), 30(1)(a) and 15(1)(i), but no longer sought to rely on section 35(1)(a). On 15 July 2024, the applicant applied to this Office for a review of the HSE’s decision on the matter.
During the course of this review, the HSE raised concerns on the validity of the consent which the applicant had provided on behalf of his mother. This will be dealt with under section 37(1) later on in the 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 submissions made by the relevant parties who made submissions. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
During the course of the review, the HSE noted that it had incorrectly applied section 15(1)(i) to the records in question and that it was no longer seeking to rely on this exemption going forward. It released the records in question to the applicant subject to the removal of third-party personal information from the records.
It also noted at the same point that it had incorrectly applied section 37(1) to the names, email addresses and phone numbers of staff members at pages 2, 4, 8, 12, 29, 31 ,36 ,42, 48, 50, 52-54, 73-74, 79, 80, 87, 95, 98, 108, 110, 111 and it confirmed that this information would be released.
The HSE has maintained its application of section 37(1) to the information of third parties at pages 13-17,19-20,23-27, 32, 33-35, 37-38,39-40, 46, 47, 50, 52-54, 73-74, 81-82, 92-93, 94, 96, 102-103, 104-105, 106, 110.
The HSE has also refused portions of pages 34 – 35 on the basis of section 30(1)(a).
In light of the above, the scope of this review is confined to whether the HSE was justified in refusing access to information contained in the above pages under sections 37(1) or 30(1)(a) of the FOI Act.
Before I address the substantive issues arising, I wish to address a number of preliminary matters.
Firstly, throughout the course of this review, the applicant has raised a number of concerns in relation to how the complaint handling process was conducted by the HSE. He argued that based on documents provided to him, it appeared that key material including opposing clinical opinions may have been removed or excluded and that given the concerns raised regarding its handling, that he had increasing concerns that the HSE’s current challenge to his mother’s consent may be a retaliatory or obstructive measure. He argues that this risks not only undermining the credibility of the FOI process but also diminishing public confidence in the integrity of public administration. On that basis, the applicant requested a formal determination by the OIC on whether the consent provided was accepted by the HSE as evidenced by its communications and subsequent actions.
On the matter of how the complaint process was handled by the HSE, as explained to the applicant, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. As such, while it is clear that the applicant is dissatisfied with the manner in which the HSE dealt with him and his complaint, this Office has no role in examining the appropriateness of those actions. This review has been conducted under section 22(2) which means that is concerned solely with a review of the decision taken by the HSE on the applicant’s request. In respect of the removal of information from the records and whether or not this was a “retaliatory measure ” as alleged by the applicant, I will consider each redaction in respect of the exemptions which have been applied by the HSE, I make no finding, other than to determine whether certain information is exempt under the relevant provisions.
Secondly, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that a requester gives for his or her request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest
Finally, I note the applicant also requested full disclosure of HSE submissions, to include all facts, arguments or evidence to support their argument that consent could not be verified. In respect of submissions received, reviews undertaken by this Office are inquisitorial, as opposed to adversarial, in nature. While it is not the practice of this Office to exchange submissions between parties to a review, we take care to ensure that the parties are notified of material issues arising for consideration. I am satisfied that all material points raised by the HSE in this case were provided to the applicant. I would also note that the High Court has previously considered the fairness of our procedures in the context of our treatment of submissions. Specifically, Quirke J made the following comments in The National Maternity Hospital v the Information Commissioner [2007] IEHC 113:
“I know of no principle of natural or constitutional law or justice which confers upon parties who make submissions to a decision-making body the right to respond to the submissions made by every other party who participates in the process. The review undertaken by the Commissioner was a statutory process which expressly envisaged and permitted the adoption of informal procedures ”.
Under section 45(6) of the FOI Act, the Commissioner has discretion to adopt such procedures as are appropriate in all the circumstances of a case. In all circumstances, this Office aims to ensure that the approach adopted is fair, and seen to be fair, to all the parties concerned. In sum, I am satisfied that the applicant was on notice of all material issues of relevance to the review and was afforded an appropriate opportunity to make submissions.
Section 37(1) – Personal Information
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 third party personal information. Personal information is defined in section 2 of the FOI Act 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 also details 14 specific categories of information which is personal without prejudice to the generality of the foregoing definition, including, but not limited to (i) information relating to the educational, medical, psychiatric or psychological history of the individual.
This does not apply where the information involved relates to an individual who has provided consent for their personal information to be released to the requester (section 37(2)(b) refers). However, section 37(7) provides that, notwithstanding section 37(2)(b), 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 individual concerned, also involve the disclosure of personal information relating to an individual or individuals other than the requester and signatory (commonly known as joint personal information).
The information redacted across the records includes the name and references to the applicant’s mother. The records also include details of her medical condition and details of her interactions with staff within the service, this information has been released to the applicant. There is also small amounts of third-party personal information related to other individuals which has been redacted across the records this includes the name of another family member and the name and certain personal observations related to a medical professional employed who provided care to the applicant’s mother.
Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers). The exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms, conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally.
In the circumstances, the information in question, while related in part to the applicant’s mother, more broadly concerns information outside the definitions in paragraph l. Section 25(3) precludes me from providing more detail on why I have determined this to be the case, but for the avoidance of doubt, such information in respect of the relevant staff member would not, in my view, be captured by the exclusion to the definition of personal information. The information in question concerns personal information provided by one staff member in the course of the relevant peer review, and in my view all of the information withheld on pages 34 – 35, outside of the identifiers related to the applicant’s mother, constitutes the personal information of that staff member, as I am satisfied the release of any part of it would identify the individual in question. I am satisfied that the information provided is information which goes beyond the ordinary course of the staff members functions.
I find, therefore, that the disclosure of the information sought would involve the disclosure of third party personal information and that section 37(1) would apply to such records. Accordingly, I am satisfied that section 37(1) applies to the redacted information across the records.
Section 37(2)
Subsection (2) of section 37 provides for a number of other circumstances where subsection (1) does not apply. Subsection 2(b) provides that the section does not apply if any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester. In such cases, the FOI body must ensure, before granting the request, that the consent of the individual is established to its satisfaction.
As set out above, the HSE has granted access to the majority of the information in the records which is related to the applicant’s mother including her sensitive medical information, engagement with medical professionals, and her children’s representations on her behalf. It has withheld further access to her name and identifying references to “she ” and “her ” from the records.
The HSE submissions
The HSE has maintained that it is not satisfied with the authorization which was provided from the applicant’s mother, to whom the records relate. The HSE has argued that following receipt of the applicant’s request dated 22 December 2023, the decision maker had a number of interactions with the applicant seeking his mother’s consent for the processing of the request. It noted that a digital copy of his mother’s consent was then provided. It noted that the consent did not reference the FOI Act and was dated 10 November 2022, and was signed by the applicant on the 11 September 2022. The HSE noted that at the time the decision maker accepted this consent. The HSE accepts consent was not validated at the time of this request and yet progressed in processing the request, releasing significant information/records to the applicant yet removing the applicant’s mother’s identifiers. The HSE argues that it has made efforts to validate the consent in order to resolve this matter, yet despite reaching out to both the applicant and his mother in this regard it has been unable to progress the matter of consent and have received no contact from the applicant’s mother in a significant period.
It stated that subsequent FOI requests were received on 4 June 2024, and 19 June 2024 respectively. Both requests were processed as internal reviews due to non-response. It states that the request from 4 June was refused on 26 July 2024, as the decision maker was not satisfied valid consent was provided. On the 26 July 2024, the HSE stated the second request was refused as the request had contained a typed undated authority signed by the applicant’s mother and the decision maker was again, not satisfied that valid consent had been provided.
The HSE maintains that the refusals of the requests were based on the fact that the applicant’s mother was invited to a meeting which she did not attend. The HSE has stated that the purpose of the meeting was to validate consent to progress an external review of a complaint and also the two additional FOI requests. It said that following a subject access request which was received from the applicant on 4 November 2024, the HSE stated that the same authority was once again provided, it states that a letter issued to the applicant’s mother on 17 December 2024, seeking verification of consent but that no response was received.
The Applicant’s submissions
In his submissions to this Office, the applicant has queried how the consent of his mother could have been accepted by the original decision maker and formed the clear basis of both the initial FOI response and internal review conducted by the General Manager. He maintains that it is both illogical and unfair that, only now at OIC review stage that consent is being questioned. He queried how the HSE could accept consent in writing, process and review a request based on it and then deem it invalid at the appeal stage. The applicant considers that this retroactive change without explanation, undermines transparency and due process which he argues the Freedom of Information Act is intended to protect. He argues that it places the requester in an impossible position. Finally, the applicant has alleged that the inconsistency proves that the issue of consent is not a genuine concern but is being used retrospectively to obstruct the release of information. He alleges that this undermines the fairness and integrity of the FOI process.
At the outset, it is worth noting again that section 37(2)(b) only provides for the access of information in records solely related to the consenter. Where section 37(7) is relevant i.e where there is joint personal information under consideration, section 37(2)(b) cannot provide for the release of that information, as it is information which also relates to third party individuals.
During the course of this review, clarity was sought from the HSE on why personal and private medical information related to the applicant’s mother was released and only references to her name and identifiers withheld. In particular, I queried how the HSE could argue that having released the majority of information related to the applicant’s mother’s diagnosis apart from references to “her ” or “mum ”, the HSE could argue that it was challenging the consent provided. While I note that the HSE argued that the release of this personal medical information at original decision stage was a mistake, and that in relation to later FOI requests, it did not consider the consent valid nor did it release the information in question, for the purposes of this review, it seems that the remaining information in the records related to the applicant’s mother does not go any further in identifying her, considering the information which has already been released. It is worth noting also that the HSE was informed that it was this Office’s view, that the inappropriateness of redacting references such as “her ” or “mum ” was based solely on our view that it has essentially already released the substantive personal information. From my review of the file, where such information has been redacted it is apparent that the references in question relate to the applicant’s mother. Based on that, it is my view that it is reasonable to find that access to the remaining redacted information would not involve the disclosure of personal information as such information has already been disclosed and should be released on that basis.
Accordingly, I am of the view that the question of whether the consent is or is not valid is not entirely relevant to the matter before me based on the HSE’s release of sensitive medical information related to the applicant’s mother. However, I note that the applicant has other appeals before this Office and the HSE has stated that in relation to those appeals it has not validated the applicant’s mother’s consent, nor has it released the information concerned. Accordingly, I wish to be clear that my finding in this case should not of itself, prejudice any argument the HSE may want to make in subsequent reviews regarding its concerns around the consent given and those arguments should be adjudicated on accordingly.
Section 37(5) – The public interest
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still 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 request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act 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 legislation, 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, it is important to note that 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 Act can be put. With certain limited exceptions provided for under the legislation, 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 individuals concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) which provides that in performing any functions under the FOI 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 in The 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.
The remaining information under consideration as part of this review, relates either to the name and email address of another third party who is not a staff member of the hospital or it relates to information given by a staff member at a peer review group concerning personal interactions with the family over the applicant’s mother’s care. The majority of the information across the records has been released to the applicant.
The HSE’s submissions
The HSE has argued that the public interest in favour of release stems from the openness and transparency about a peer group discussion on his mother’s care and the interactions of family members including the requester. However, it has argued that the public interest is better served by protecting the information in question from release and has listed the following factors in support of its decision:
• Public interest in staff having confidence in peer groups
• Public interest in staff being able to communicate with confidence in a peer group in an atmosphere of openness, frankness and mutual support.
• Public interest in the HSE providing peer group structures in the continued professional development of staff.
In balancing the public interest, the HSE has said that it has taken into account the Supreme Court Judgement in the ‘Minister for Communications, Energy and National Resources and the OIC and Ors.’ It maintains that it has not found a sufficiently cogent or fact based reason to determine the balance is in favour of the release of the withheld information in meeting the general principle of openness. The HSE considers the public interest balance weighs towards withholding this information from release.
The Applicant’s submissions
The applicant has argued that the information in question was provided in the context of a peer review and that there is a public interest in ensuring that the information which was provided in the context of that discussion is vital for the family to understand how events were portrayed, to ascertain the basis for the conclusions reached, and to make informed decisions about their next steps, including potential legal action. The applicant maintains that the matter is one of significant public importance to ensure that the truth comes to light and that such serious issues do not recur for other patients and families within this service. He argues however that being denied access to what was said severely restricts his ability to take informed action.
The applicant maintains that the Clinical Director’s report claimed that the side effects were solely the opinion of the family. He argues that in reality multiple independent specialists — including a neurologist, ENT consultant, and senior medical consultant — all agreed, after the families departure from this service that his mother’s symptoms were medication induced. The applicant maintains that the situation was a serious one and that it is vital that the family are provided with a full unredacted account of what was presented.
The question I must consider is whether, on balance, the public interest in granting access to the information at issue, which would involve the disclosure of third party personal information, outweighs the public interest in protecting the privacy rights of those third parties. I fully accept that there is a public interest in the applicant knowing what information it holds on file relating to his mother, particularly in circumstances where that information is relevant to the care and treatment afforded to his mother and potential next steps in the circumstances. I also accept that while the information in this case is specific to the applicant’s mother, the applicant has also identified a broader public interest in the public understanding how information concerning their medical care or symptoms are portrayed.
On the other hand, the FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and 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, therefore, will be set aside only where the public interest served by granting release (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. Moreover, I must have regard to the fact that the release of information under FOI must be regarded as, potentially at least, release to the world at large. As I have highlighted above, any decision to grant access to such information 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 individuals concerned. As I have also outlined above, 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 ”.
It seems to me, that the public interest in enhancing the transparency and accountability of the HSE in relation to how it carries out its functions concerning mental health services in this case has been met to a large extent by the release of a significant amount of the information at issue. In processing this FOI request, it seems to me that the HSE whether mistakenly or not, has released the records to the greatest extent possible whilst seeking to protect the privacy rights of third-parties. The question I must consider is whether the public interest in ensuring the further transparency and accountability of HSE by releasing the remaining information withheld in the records at issue outweighs, on balance, the public interest in protecting the privacy rights of the third-parties concerned.
Having regard to the sensitive nature of the context in which the information is held, to the significant protection afforded to privacy rights, and to that fact that the release of records under section 37(5)(a) 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 to the information redacted on pages 34 and 35 concerning the staff member in question, nor does it apply to the name/email address of the other third party family member where it appears across the records.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE’s decision. I find that the HSE has justified its refusal of third party personal information related to the staff member on pages 33 – 35 and the name of another third party family member where it appears across the records. I find, that is has not however justified its refusal of the remaining identifiers concerning the applicant’s mother on the basis that it has already released the substantive personal information related to her within the records.
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.
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Rachael Lord
Investigator