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Case Number: 160144

Whether the HSE was justified in its decision to refuse access to medical records of the applicant's late sister under section 37(1) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

 

Background

The applicant's solicitors submitted a request to the 'Records Department' of Merlin Park Hospital, for access to the medical records of the applicant's deceased sister. From records provided to this Office by the HSE it is clear that the applicant's solicitors and the HSE communicated with each other, over a period of several months, in order to clarify the status of the request made by the applicant. It is not necessary to go into detail here about the various exchanges. For the purposes of this review, I am taking it that a letter of 8 May 2015 was processed by the HSE as the applicant's FOI request. Thus, the provisions of the FOI Act 2014 apply.

In its original decision of 3 December 2015, the HSE refused access to all of the records on the basis of section 37 of the FOI Act and explained that the applicant's late sister had not given her consent for the applicant to have access to her records after her death in 2014. The HSE subsequently affirmed that decision, following a request for an internal review. On 30 March 2016, this Office received an application for a review of the decision of the HSE from the applicant.

In conducting my review, I have had regard to correspondence received from of the HSE and the applicant and to correspondence between the applicant and the HSE. I have also had regard to the content of the records at issue and to the provisions of the FOI Act and the relevant Regulations. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

 

Scope of the Review

This review is concerned solely with the question of whether the HSE was justified in refusing access to the medical records of the applicant's deceased sister under section 37 of the FOI Act.

 

Preliminary Matters

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

Section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. However, the Commissioner takes the view that neither the definition of a record under section 2 nor the provisions of section 13 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded.

This means that the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions.

 

Analysis and Findings

In addition to the personal information relating to the applicant's deceased sister, there is a small amount of personal information in the records relating to individuals other than the applicant.

Section 37
Section 37(1) - Personal Information
Section 37(1) of the FOI Act provides that an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester (including personal information relating to a deceased individual). The effect of section 37(1) is that a record disclosing personal information of a third party cannot be released to another person unless one of the other relevant provisions of section 37 applies - in this case section 37(2), or 37(8).

Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of their information (I will refer to the matter of consent later in this decision); (c) that the information is not of a kind that is available to the general public; (d) that 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) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
Consequently, I find that section 37(2) does not apply to the information in the records at issue.

Section 37(8)(b) - Access to the personal information of deceased persons
In its decision the HSE did not specifically refer to the provisions of section 37(8) of the FOI Act. However, a potential right of access to records of a deceased person arises under that section which provides that, notwithstanding section 37(1), the Minister may provide by regulations for the grant of a request where:
"(b) 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, 1997 (Section 28(6)) Regulations, 2009 (S.I. no. 387 of 2009). The regulations remain in force, notwithstanding of the enactment of the FOI Act, 2014. Article 4(1)(b)(iii) of the regulations provides that access shall be granted to personal information relating to a deceased person where the requester is:

"the spouse or the next of kin of the individual where in the opinion of the head, having regard to all the circumstances and to any relevant guidelines published by the Minister, 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 view of the fact that it is not clear whether the HSE decision makers had regard to the 2009 Regulations, or to the relevant guidelines, I considered whether to annul its decision and remit the matter to the HSE for a fresh decision. In the circumstances, I decided that no purpose would be served by this. I note that the HSE has provided sufficient information to allow me to apply the regulations to this case. I note also that the applicant is represented by solicitors who were made aware by the HSE that the provisions of section 37 applied to the request.

The applicant is the sister of the deceased and along with other siblings, would be the next of kin, in accordance with section 71(2) of the Succession Act, 1965. Therefore, the issue to be addressed 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 request, having regard to all the circumstances and to any relevant guidelines published by the Minister.

In considering the public interest test, I have had regard to the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] IESC 26 (available at www.oic.ie). In the judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, 'a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law' must be distinguished from a private interest.

It should be noted that Macken J's comments in Rotunda referred to the public interest test contained in the confidentiality exemptions in the FOI Act, rather than the very specific test set out at article 4(1)(b)(iii) of the regulations. It is plain from the contents of the Regulations, which refer to a consideration of "all the circumstances" of the case, as well as the matters specified in the guidelines, that such circumstances and matters, where relevant, cannot be excluded solely on the basis that they are not public interest factors. It is also plain from the regulations that the Oireachtas has determined that certain categories of requester shall be granted access to the records of deceased persons provided certain requirements are met.

The applicant has not made any specific public interest argument as to why this information should be released to her. The FOI Act recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution.

Guidance Notes have been published by the Minister for consideration by decision makers in applying the 2009 Regulations. The Guidance Notes specify certain factors to be taken into consideration in deciding if release is appropriate to such persons, including the following:

"Each case will have to be judged on its own merits. The decision maker will have to balance the public interest in the confidentiality of personal information against the public interest in the right of the requester to access the records. While section 13(4) requires that the decision maker shall disregard any reasons the requester gives for the request, in making a judgment in relation to the records of deceased persons, it is reasonable for a decision maker to inform him or herself as fully as possible of all the circumstances relevant to the request. In reaching this decision, the decision maker should take the following into consideration:

• The confidentiality of personal information as set out in section 37(1) of the Act.
• Would the deceased have consented to the release of the records to the requester when living? If so, this would strengthen the case for deciding to release after death...
• The nature of the relationship of the requester to the deceased and the circumstances of the relationship prior to the death of the deceased...
• The nature of the records to be released. If the record is inherently private, and of a very sensitive nature, then it is likely not to be released unless there are compelling reasons for so doing... In relation to medical records, due regard should be had to the confidentiality of medical records in accordance with the Irish Medical Council Guide to Ethical Conduct and Behaviour. Records containing joint personal information of both the requester and the deceased might, subject to other considerations, fall to be released...
• Any other circumstances relevant to the request as set out by the requester. These should be taken into account by the decision maker in reaching a decision on the request."

 

The Guidance Notes suggest that in relation to medical records, due regard should be had to the confidentiality of medical records.

On the matter of the confidentiality of personal information and the questions of consent, the HSE stated that when she was alive, the deceased "had on a number of occasions made known to the HSE that she did not consent to the [applicant] gaining access to her medical records". In this regard, I note that a similar FOI request from the applicant, for access to the records of the deceased when she was alive, was refused by the then Western Health Board in 2003.

The decision on that occasion stated that the deceased "was very clear that she did not want her medical records to be released to anybody".

The HSE stated that a Consultant Psychiatrist, had written to the applicant in 2012 and advised her that the deceased had identified another person specifically as her next of kin. The letter also advised that the deceased "... does have capacity around this issue at this point in time". In addition, on foot of the applicant's recent FOI request in 2015, the HSE received confirmation from the psychiatrist that her position had not changed concerning the wishes of the deceased.

With reference to the guidelines as set out above, I am satisfied that the records at issue are confidential and inherently private. I am also satisfied that the deceased did not consent to the release of the records to the requester when living. I have been given no information which would allow me to conclude that the nature of the relationship between the applicant and the deceased, or any other relevant circumstances, have changed from those put forward by the HSE and described above. Neither has any particular argument been put forward that the public interest in the applicant having access to those records overrides the public interest in the confidentiality of personal information, or that there are any other circumstances to which I should have regard.

I am satisfied that in all the circumstances and having regard to the Guidelines, the public interest in the release of the withheld information in this instance does not, on balance, outweigh the public interest in protecting the public interest in the confidentiality of personal information. I therefore find that the HSE was justified in refusing the applicant's request under section 37(8)(b) of the FOI Act and under article 4(1)(b)(iii) of the regulations.

As noted above, a small number of the records contain information relating to parties other than the applicant or her deceased sister. For clarity, I must say here that I am satisfied that the information in question is personal information relating to those individuals and that there is no overriding public interest in release of the information that would outweigh the privacy rights of the individuals concerned. I find, therefore, that such information is exempt from release under section 37(1) of the FOI Act.

 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE.

 

Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator