Decision
Mr. X & The Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-159903-N9W7H5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-159903-N9W7H5
Published on
Whether the HSE was justified in refusing access to records relating to the applicant’s deceased father pursuant to section 37(1) of the FOI Act.
30 June 2026
In a request dated 13 February 2025, the applicant sought access to medical records relating to his deceased father, and particularly details of his psychiatric treatment from approximately 1972 to 1990. In a decision dated 27 March 2025, the HSE refused access to two charts of records pursuant to section 37(1) of the FOI Act.
The applicant sought an internal review of the HSE’s decision, and in a letter dated 29 May 2025, the HSE affirmed its original decision to refuse access to the records sought. On 19 June 2025, the applicant applied to this Office for a review of the HSE’s 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 applicant and by the HSE in support of its decision. 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.
This review is concerned solely with whether the HSE was justified in refusing access to the medical records of the applicant’s deceased father on the basis that the records are exempt from release pursuant to section 37 of the FOI Act.
Section 37(1)
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 would involve the disclosure of personal information, including personal information relating to a deceased individual. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester. Under section 37(1), personal information cannot be released unless one of the other relevant provisions of section 37 applies.
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 above definition, constitute personal information, including (i) information relating to the educational, medical, psychiatric or psychological history of individual.
The records at issue contain information relating to the medical and psychiatric history of the applicant’s deceased father. I find, therefore, that section 37(1) applies.
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the individual to whom the information relates has not consented to the release of the 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. I find that section 37(2) does not serve to disapply section 37(1) in this case.
Section 37(5) provides that a request which would otherwise be refused under section 37(1) may be granted where on balance (a) the public interest that the request be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.
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 in deciding whether to grant or refuse an FOI request, any reason that the applicant 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 when records are released under the FOI Act they are considered, in effect, to be released to the world at large, as the Act places no constraints on the uses to which a released record under the Act can be put. With certain limited exceptions provided for under the Act, such as under sections 37(2)(a) and 37(8) (which I consider below), FOI is not about granting access to information to particular individuals only and as noted above, an applicant'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) 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 in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57. 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 a case involving commercial sensitivity and confidentiality, I consider them to be relevant to the consideration of public interest tests generally.
In his correspondence with the HSE and with this Office, the applicant explained that he wanted to know the grounds on which his father had been incarcerated for a significant duration of the applicant’s childhood and then released. He said he wanted to know why his father had been retained for so long. Referring to a recent family tragedy, he added that it was important to know his family's psychiatric history.
In its submissions to this Office, the HSE said it considered the following factors in favour of releasing the records sought:
• The public interest in the public knowing how the HSE performs its functions,
• The public interest in member of the public exercising their rights under the FOI Act,
• The public interest in openness and transparency in the HSE.
The HSE said it considered the following public interest factors in favour of withholding the records sought:
• The public interest in protecting the right to privacy of a third party including those who are deceased,
• The public interest in the HSE being able to perform their functions and communicate effectively,
• The public interest in doing what is in the best interest of the applicant’s late father.
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) and that the right to privacy afforded by the Act extends to deceased persons. 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
It seems to me that the applicant’s arguments reflect a public interest in the promotion of transparency in the level and type of care afforded to individuals. However, as I have outlined above, it is important to note that records release pursuant to section 37(5)(a) are considered, in effect, to be released to the world at large. Moreover, the records at issue in this case are of an inherently private and sensitive nature. As such, I am satisfied that the promotion of transparency in the level and type of care afforded to individuals by the release of the records at issue does not, on balance, outweigh the public interest in the strong protection of the privacy rights of the individual concerned.
The applicant has also identified a public interest in the disclosure of information that may allow for enhanced knowledge of possible hereditary conditions that might affect relatives. On this point, this Office’s Investigator sought further submissions from the HSE on the matter. In response, and given the particular circumstances arising, the HSE agreed to arrange consultation between the applicant and a consultant psychiatrist who has reviewed the records and is qualified to provide an informed opinion on such matters. As I understand it, the HSE have since offered this consultation to the applicant. Having regard to those developments, I am satisfied that the offer of such a consultation to the applicant substantially addresses the public interest in him being able to understand his late father’s mental health history and whether or not he suffered from any hereditary conditions. I should note it is a matter for the applicant to chose to avail of this consultation and I strongly encourage him to avail of this opportunity.
Accordingly, I am satisfied that there are no public interest factors in favour of releasing the records sought which would, either individually or cumulatively, outweigh the very significant weight which is to be attributed to the right to privacy of the individual. I find, therefore, that section 37(5)(a) does not apply.
Section 37(8) of the Act 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 where the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations.
The Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. No. 218 of 2016), as amended, are the relevant Regulations in this case (the Regulations). Amongst other things, the Regulations provide that, notwithstanding section 37(1) (and subject to the other provisions of the FOI Act), a request for records which involves the disclosure of personal information of a deceased individual shall be granted where the requester is the spouse or the next of kin of the individual and the public body considers that, 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.
The HSE said that it was satisfied that the applicant is the son of the deceased and therefore satisfied the definition of next of kin as set out in the Regulations.
The Minister has published guidance on the application of the Regulations (the Guidance), in accordance with section 48(1) of the FOI Act. Section 48(3) of the FOI Act requires FOI bodies to have regard to guidelines published by the Minister in the performance of their functions.
The Guidance provides that it is a matter for the decision maker to make such enquiries and engage in such consultation as is necessary to allow him or her to decide if the public interest would be better served by granting than by refusing the request. It suggests that certain factors should be taken into consideration when deciding if release is appropriate to the spouse or next of kin of the deceased, including:
• the confidentiality of personal information as set out in section 37(1)
• whether the deceased would have consented to the release of the records to the requester when living
• whether the person had outlined arrangements in his or her will or other instrument in writing consenting to the release of personal records
• whether release would damage the good name and character of the deceased
• the nature of the relationship of the requester to the deceased and the circumstances of their relationship before the deceased's death
• the nature of the records to be released
• whether the requester can obtain the information they seek without accessing the records of the deceased
• any other relevant circumstances that the requester may set out.
Furthermore, in considering the nature and confidentiality of records to be released, the Guidance states that if the record is inherently private and of a very sensitive nature, then there must be compelling reasons for its release. In relation to medical records in particular, it states that due regard should be had to the confidentiality of medical records in accordance with the relevant Irish Medical Council guidance (currently the Guide to Professional Conduct and Ethics for Registered Medical Practitioners - 9th edition published 2024 (the “Medical Council Guide”)). The Medical Council Guide states that patient information remains confidential even after death and suggests that, if unclear whether the patient consented to disclosure of information after their death, it should be considered how disclosure of the information might benefit or cause distress to the deceased’s family or carers, along with the effect of disclosure on the reputation of the deceased and the purpose of the disclosure. It is apparent from the Regulations, which refer to “all the circumstances”, and from the factors specified in the Guidance that circumstances and relevant matters cannot be excluded solely on the basis that they are not public interest factors.
The HSE said it considered each of the circumstances outlined above as per the Guidelines and provided details of its analysis in its submissions to this Office. Much of these details relate to the contents of the records themselves and so I am unable to provide an overview of the matters considered. Suffice to say, the HSE believe that the public interest would be best served in withholding the records sought by the applicant having regard to the highly sensitive nature of the records and the material contained therein, certain of which also relates to third parties.
Given the inherently private and sensitive nature of the records at issue, the question of whether the deceased would have consented to the release of the records to the requester when living is, in my view, a very important factor in considering whether a right of access exists pursuant to the Regulations. Given the contents of the records at issue, it is not apparent to me that the deceased would have consented to the release of the records to the requester when living. While I sympathise with the applicant’s circumstances and what appears to me to be his genuine desire to understand the reasons for his late father’s incarceration in psychiatric institutions, in light of what I have set out above, I am not satisfied having regard to all the circumstances, that the public interest would, on balance, be better served by granting than by refusing to grant the request. I find, therefore, that the Regulations do not provide for a right of access to the records sought.
In conclusion, therefore, I find that the HSE was justified in refusing, under section 37(1) of the Act, the applicant’s request for access to his late father’s medical records.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision. I find that the HSE was justified in refusing access, under section 37(1) of the FOI Act, to the medical records of the applicant’s late father.
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