Decision
Ms X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-151932-Y4Z9M5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-151932-Y4Z9M5
Published on
Whether the HSE was justified in refusing access, under section 37(1) of the FOI Act, to medical records relating to the applicant’s deceased aunt
12 May 2025
In a request dated 20 September 2023, the applicant sought access to the medical records of her late aunt relating to the time she spent in a named psychiatric hospital from the late 1920’s until her death in the early 1980’s. In a decision dated 18 January 2024, the HSE refused the request under section 37 of the FOI Act. On 16 February 2024, the applicant sought an internal review of that decision, following which the HSE affirmed its refusal of the request. On 11 September 2024, 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 correspondence referred to above and to the submissions made by both parties during the review. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned with whether the HSE was justified in refusing, under section 37 of the FOI Act, the applicant’s request for access to the medical records of her late aunt.
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, including personal information relating to a deceased individual. This does not apply where the information involved relates to the requester (section 37(2)(a) refers).
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. Those categories include information such as; (i) information relating to the educational, medical, psychiatric or psychological history of the individual, and (xiv) the views or opinions of another person about the individual.
The records at issue in this case comprise medical records relating to the mental health of the applicant’s deceased aunt. I am satisfied that their release would involve the disclosure of personal information relating to the deceased and other third parties and that section 37(1) of the FOI Act applies to the records. However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section, specifically subsections (2), (5), and (8). Accordingly, I must proceed to consider whether any of those other provisions serve to disapply section 37(1) in respect of any or all of the information at issue.
Section 37(2) provides that section 37(1) does not apply if;
a. the information concerned relates to the requester concerned,
b. the individual to whom the information relates consents, in writing or other such form as may be determined, to its disclosure to the requester,
c. information of the same kind as that available 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 it 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 the applicant has argued that it is not possible for section 37(2)(b) to apply in this case and that therefore it cannot be used as a reason to deny release of the file to her as next of kin. While acknowledging that it is not possible for the deceased to consent to disclosure at this time, it remains the case that no such consent exists as required by the FOI Act and therefore, section 37(2)(b) does not apply.
The applicant also disagreed with the decision maker’s position, as per section 37(2)(c) and (d), that the information is not of a kind which is available to the general public or that the records at issue do not belong to a class of Information which would or might be made available to the general public. She argued that, had it not been for the release of patient files and the disclosure of private information to the world at large, the State would not have had the opportunity to acknowledge and learn from past mistakes of public bodies. She referenced the Commission to Inquire into Child Abuse 2000, the Mother and Baby Home Commission of Investigation 2015, the Cervical Check Tribunal 2019 and HIQA’s Áras Attracta investigation in support of her position.
While medical records may well have been made available to the commissions, tribunal and the investigation referenced by the applicant, this does not mean that mental health records such as those at issue in this case are available to the general public. I am satisfied that they are not. Moreover, in so far as any of the any information in the records comprises information the applicant’s aunt may have given to the HSE, I am satisfied that she would not have been informed beforehand that the information belongs to a class of information that would or might be made available to the general public
I am satisfied that none of the circumstances outlined above at subsections (a) to (e) apply in this case. I find, therefore, that section 37(2) does not apply.
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 third parties to whom it relates.
In her submissions to this Office, the applicant said that the grant of the request would benefit her late aunt, chiefly by bringing clarity and removing the stigma surrounding her tragic life and death. I do not accept that argument. I am satisfied that the release of the records at issue would not benefit the applicant’s deceased aunt.
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, 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 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, 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) 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. I have also had regard to the comments 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] 1 I.R. 729, [2011] IESC 26) (‘the Rotunda case’). In this regard, I note that a public interest should be distinguished from a private interest.
In its submissions, the HSE said the FOI Act recognises the public interest in ensuring the openness and accountability of public bodies as well as the public interest in ensuring that persons can exercise their rights under the Act. It said it considered the following factors in favour of release:
• The public interest in a member of the public (the requester) exercising a right of access under the FOI Act and
• The public interest in ensuring openness and accountability.
It said it considered the following factors against release:
• The public interest in protecting the right to privacy even after death,
• The public body must respect the right of third parties in ensuring that their personal information remains confidential,
• Protecting the confidentiality of information imparted to the HSE in respect of sensitive matters including the personal information of a deceased individual,
• The public interest in individuals being able to communicate in confidence with the HSE in matters relating to personal and sensitive issues and concerns in relation to such matters without fear of disclosure and identification,
• The provision of information by individuals in respect of sensitive matters concerning vulnerable individuals now and in the future,
• Once records are released through the FOI process, those records are considered to be released to the world at large and the HSE no longer has control over such records and
• Medical records are of an inherently private nature and are expected to be kept confidential even after death.
In her correspondence with the HSE, the applicant argued that it was in the public interest to release her aunt's records to ensure openness and accountability. Among other things, she said she believed her aunt was forcibly admitted to the hospital against her will and that during her approximate sixty year stay, she was never given the opportunity to leave. She said it was in the public interest to know that it was an acceptable practice in Ireland at that time, to disregard the rights of an individual, by placing them in long term institutional care without any hope of ever regaining their independence. She said the Church's influence on Irish society and on the Irish political system at the time had a negative impact on the rights of the individual, particularly women's rights. She said she believed her aunt was a victim of an unfair system. She said it was in the public interest to know how the Church's influence, the new Free State's influence, and the socio-economic climate at the time, negatively impacted on the rights of women.
In her application for review to this Office, the applicant said she was seeking access to her aunt’s records in the knowledge of past failures of State run institutions, of society's unfair treatment of women at that time, and with a suspicion that her Aunt had been the victim of a crime, potentially resulting in her admittance to the psychiatric hospital.
In further submissions during the review, among other things, the applicant said a disproportionately high number of people were placed in asylums in Ireland compared to other jurisdictions, and that the State was much slower in transitioning to a community-based approach to psychiatry. She said her aunt's experience illustrates how the State disempowered her, whether she was mentally unwell or not. She said that the release of the records to her would disclose her aunt’s experiences which would give voice to a class of women incarcerated by the State, who, up to now, have generally been erased from Irish history.
She said the release of the records is in the public interest because a public inquiry into the excessive use of county asylums and the treatment of those incarcerated within them will happen at some point. She said their stories will be central in helping us understand how, as a society, we became so efficient at incarcerating our family and neighbours to such a large extent. She said that an inquiry of this kind would be for the common good and would benefit society as a whole, not just those affected by the county asylum system. She said the subject of county asylums is well documented in broadcast media, the popular press and peer reviewed journals, and that many centre around the information contained in patient files which, she argued, is proof that the public interest is better served by the release of the information sought. She said it is in the public interest, for the common good of society, to release patient files to better understand the impact of the asylum system and other state run institutions.
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 it 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. 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).
The applicant has identified a number of relevant public interest factors in the release of the records that would serve to enhance the accountability and transparency of how facilities such as the one in which the applicant’s aunt was resident treated its patients. Indeed, I accept that there is a strong public interest in shedding light on such matters. However, it seems to me that if such matters were to become the subject of a public inquiry or tribunal, access to records such as those at issue would be granted on a limited basis and solely for the purposes of conducting such an inquiry. I have no doubt that steps would be taken to protect the identities of the individuals whose records might be made available. On the other hand, the release of the particular records at issue under section 37(5)(a) must be regarded as potential release of inherently private information relating to an identifiable individual potentially to the world at large. The fact that the records date back a long time does not, in my view, diminish the inherent privacy of the information they contain. In the circumstances, I am not satisfied that the release of such sensitive and private information potentially to the world at large would on balance, outweigh the right to privacy of the deceased. Accordingly, I find that section 37(5)(a) does not serve to disapply section 37(1) in respect of any of the information at issue.
Section 37(8) provides that notwithstanding subsection (1), the relevant 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 relevant regulations are the Freedom of Information Act 2014 (section 37(8)) Regulations 2016 (the 2016 Regulations).
Among other things, the 2016 Regulations provide that, notwithstanding section 37(1);
• a request may be made for records which involves 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.
The Minister has published guidance on the application of the 2016 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 HSE accepts that the applicant is the next of kin for the purpose of the 2016 Regulations. However, it is important to note that the fact that the applicant is the next of kin of the deceased does not mean that she is automatically entitled to access the records. The issue I must consider is whether, 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 applicant’s request. As the 2016 Regulations require that regard must be had to "all the circumstances", relevant circumstances cannot be excluded solely on the basis that they are not public interest factors. The Guidance referenced above 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 the 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 get the information they want without accessing the records of the deceased; and
• 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 in 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.
In its submissions, the HSE said that in considering the level of confidentiality of the medical records which are the subject of this case, consideration must also be given to the Medical Council’s position on the duty of confidentiality a Registered Medical practitioner must have to a patient and that such confidentiality remains even after death. It said that point 30.1 of the Guide to Professional Conduct and Ethics for Registered Medical Practitioners relates to the disclosure of patient information after death and states;
“Your professional duty of confidentiality remains even after a patient’s death. If it is unclear whether the patient consented to the disclosure of information after their death, you should consider how the disclosure might benefit or cause distress to the deceased’s family or persons close to them. You should also consider the effect of disclosure on the reputation of the deceased and the purpose of the disclosure.”
The HSE said that, in considering this guidance and having reviewed the records, it is strongly of the view that release of the records would not be in the best interest of the applicant’s deceased aunt. It said it is concerned that the release of the records will present the applicant with a negative insight of her late aunt’s life, detailing her past difficulties and the challenges she faced as a young lady after being admitted to a state owned and run mental institution and as her life advanced over the 64 years as an inpatient, which also evolved and experienced changes in practice over that time period. It said that over the last 100 years the model of care provided to individuals experiencing mental health difficulties has changed. It said the social history of mental health institutions in Ireland, the many circumstances which lead to many admissions in the 1920’s and beyond, the effects such institutions had on patients, and the evolving changes in the provision of mental healthcare in Ireland is well documented and publicly available. It drew attention to a specific website that explores the evolution of the specified facility through the decades and gives educational information and a historical perspective on life in the facility. It said it notes that the applicant is aware of such literature but that she contends that the release of patient files is in the public interest to better understand the impact of the asylum system and other state run institutions. It said it does not believe that it is in the public interest to release the applicant’s late aunt’s personal, private and sensitive medical records to the applicant for the public to understand the impact of the asylum system.
It said that, in making its decision, it also considered the effect of the disclosure of the records on the reputation of the deceased. It drew attention to particular information in the records and said that the language utilised in the records is not the same as today’s standard and would not provide an understanding into the individual’s illness.
The HSE said that there is no evidence in the records to indicate that the deceased would have consented to the release of the records to the applicant when living and, based on her early diagnosis, it is unlikely that she would have had the capacity to consent. Referencing a number of specific entries in the record, the language used, and the sensitivity of the information, it strongly advocates that the deceased, if living and having capacity, would not have consented to the release of the records. It said the records are very sensitive mental health records and to release them under the FOI process would be the same as releasing them to the world at large because the HSE would no longer have control of them. It said it is not aware that the deceased made a will nor has it been provided with a copy of any will.
The HSE is of the view that the good name and character of the deceased would be damaged if the information contained in the records was released and that there is no control of records once released under the FOI Act.
The issue I must consider is whether the HSE was justified in finding that, having regard to all the circumstances, release of the record would not be in the best interests of the applicant’s deceased aunt. While it is relevant to consider the release of personal information as potential release to the world at large when considering whether, pursuant to section 37(5)(a), the public interest in granting a request outweighs the right to privacy of the individual to whom the information relates, it is not, in my view, appropriate to do so when considering whether a right of access exists pursuant to the 2016 Regulations. The Regulations require the request to be considered based specifically on the identity of the requester in such cases. The question that must be considered is whether release to the applicant would be in the best interests of the applicant’s deceased aunt.
I have considered the factors outlined in the Guidance that should be taken into consideration when deciding whether release is appropriate and the submissions made on this issue. I am of the view that the information is inherently private, sensitive personal information. While I cannot be certain that the deceased would or would not have consented to the release of the records, in the absence of any clear indication of same I believe that I must have regard to the sensitivity of the information to be released and the possibility that it has the potential to damage the good name and character of the deceased.
I have noted the public interest arguments around poor record keeping, a potential future inquiry, historic long term incarceration of individuals leading to institutionalisation and church influence on Irish society negatively impacting the rights of women raised by the applicant. These must be balanced against the privacy concerns raised by the HSE and its arguments about the level of information already available in respect of institutional harms.
Having carefully considered the matter, while I have sympathy for the applicant’s position, I am satisfied that the HSE was justified in deciding that, having regard to all the circumstances, the public interest would, on balance, be better served by refusing to grant the applicant’s request. While I fully accept that the record is quite old, I am not persuaded that this sufficiently diminishes the inherent sensitivity of the information at issue and I am satisfied that the deceased would not have consented to the release of the records when living. I find, therefore, that the 2016 Regulations do not provide for a right of access to the record at issue in this case.
In conclusion, I find that the HSE was justified in refusing access, under section 37(1) of the FOI Act, to the records sought.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision to refuse access, under section 37(1) of the FOI Act, to the medical records of the applicant’s deceased aunt.
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