Whether the HSE was justified in its decision to refuse access to parts of the information contained  in the file of the applicant's deceased aunt under section 37 of the FOI Act on the grounds it is personal information of third parties

16/01/2018

Background

On 15 July 2017, the applicant submitted a request to the HSE for records held in relation to her deceased aunt.  On 21 August 2017, the HSE issued a decision in which it part-granted the request. While it granted access to the vast majority of the records, it redacted some information from three records and refused access to three others under section 37 of the FOI Act. The applicant sought an internal review of that decision on 5 September 2017, following which the HSE affirmed its original decision. On 22 October 2017, the applicant sought a review by this Office of the HSE's decision. 

During the course of the review, Ms Hannon of this Office contacted the applicant and informed her of her view that the HSE was justified in refusing access to the information concerned. The applicant has chosen to proceed with the review so I have decided to bring this case to a close by way of a formal, binding decision.

 In conducting the review I have had regard to correspondence between the applicant and the HSE and to the correspondence between this Office and both the applicant and the HSE on the matter. I have also had regard to the content of the withheld records provided to this Office by the HSE for the purposes of this review.
 

Scope of the Review

This review is concerned solely with whether the HSE was justified in refusing access under section 37 of the FOI Act to certain information contained in file held by the HSE relating to the applicant's deceased aunt on the ground that it is the personal information relating to third parties.

Preliminary Matter 

Section 13(4) of the FOI Act, subject to the other provisions of the Act, requires FOI bodies and this Office to disregard an applicant's reasons for making a request. Therefore, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse the request. In relation to the question of the public interest, the reasons for a request are relevant only insofar as they reflect or overlap with what may be regarded as a "true" public interest.

Analysis and Findings

The HSE redacted information comprising the name, addresses and telephone numbers of individuals other than the applicant's aunt. It also refused access to one piece of correspondence from a third party to the Hospital where the aunt was a patient. 

Section 37(1) of the FOI Act provides for the mandatory refusal of a request where the FOI body considers that access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester, including personal information relating to a deceased individual. Section 2 of the FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. I am satisfied that all of the information withheld by the HSE is personal information relating to individuals other than the applicant. I find, therefore, that section 37(1) applies to the information at issue.

The effect of section 37(1) applying is that a record disclosing personal information relating to a third party or third parties cannot be released to another person, unless one of the other relevant provisions of section 37 applies, which I will deal with below.

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 those circumstances arise in this case. Section 37(5) of the FOI Act 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 granting of the information would be to the benefit of the person to whom the information relates.

In the circumstances, I am satisfied that the release of the records would not benefit the individuals to whom the information relates and I find that section 37(5)(b) does not apply. On the matter of whether section 37(5)(a) applies, I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individuals to whom the information relates. 

The FOI Act acknowledges that there is a public interest in ensuring the openness and accountability of public bodies in the manner in which they perform their functions. On the other hand, the 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 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.

Having considered the matter carefully, in my view, the public interest in release of the withheld information in this instance does not outweigh the public interest in protecting the privacy rights of the individual (s) to whom the information relates. I find, therefore, that section 37 (5)(a) does not apply.  

The applicant submitted that she should have access to the withheld information as all possible third parties would now be deceased. In submissions to this Office, the HSE stated it had sought evidence from the applicant in order to confirm her status as next of kin to her deceased aunt. The HSE has stated it is not known whether the individuals concerned are living or deceased. For the avoidance of doubt, I should add that while the Minister for Public Expenditure and Reform has introduced regulations, pursuant to section 37(8), that provide for access to records of deceased persons by certain categories of requester, no evidence has been presented to me that the applicant is a member of any of those categories in relation to these third parties. The categories include personal representatives, persons on whom a function is conferred by law in relation to the deceased or his or her estate, and the spouse or the next of kin of the deceased. I find, therefore, that section 37(8) is of no relevance in this case.

Accordingly, I find that the HSE was justified in its decision to refuse the third party information at issue in this case under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the HSE's decision to refuse access to certain information held on the file of the applicant's deceased aunt under section 37(1) of the FOI Act.

Right of 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.


Stephen Rafferty 
Senior Investigator