Whether the HSE was justified in refusing, under section 37(1) of the FOI Act, the applicant-�s request for access to her late son-�s medical records

12 October 2022

Background

The applicant sought access to all medical records held by the HSE relating to her late son.  In its decision dated 6 June 2022, the HSE refused the request on the ground that she was not the next of kin for the purposes of the Act, as her son-�s surviving children were deemed to be his immediate next of kin. The applicant sought an internal review of that decision on 16 June 2022. In its internal review decision dated 6 July 2022, the HSE affirmed its refusal of the request, citing section 37(1) of the FOI Act in support of its refusal. On 25 July 2022, 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 the HSE to this Office.  I have also had regard to the correspondence between the applicant and the HSE as outlined above.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the HSE was justified in refusing, under section 37(1) of the FOI Act, the applicant-�s request for access to her late son-�s medical records.

Preliminary Matters

Before explaining my analysis and findings on this review, I would like to offer my condolences to the applicant on the death of her son. While I can fully understand and appreciate the importance she places on obtaining the records, it is important to note that under section 13(4) of the Act, in deciding whether to grant or refuse a request, any reason that the requester gives for the request must generally be disregarded. 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 what might be regarded as public interest factors in favour of release of the record where the Act requires a consideration of the public interest (addressed below).

Analysis and Findings

Section 37(1)

Section 37(1) 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 relating to an individual other than the requester. Given the nature of the records sought in this case, I am satisfied that their release would involve the disclosure of personal information relating to the applicant-�s late son. Accordingly, I find that Section 37(1) applies.

However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37. Some the subsections serve to disapply subsection (1), namely subsections (2) and (5). Moreover, under subsection (8), the Minister may provide by regulations for the grant of a request where -�the individual to whom the records related is dead and the requester 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 as amended (the 2016 Regulations).

The HSE must consider whether the applicant may be entitled to access her late son-�s records in two potential possible ways. First, it must consider whether one or more of the exceptions provided for in subsection (2) and (5) of Section 37 serve to disapply the exemption in subsection (1). In considering those exceptions, the applicant-�s relationship to the individual to whom the information relates is irrelevant. Granting access to records under the FOI Act is understood, effectively, to be equivalent to release to the world at large as the Act places no restrictions on the uses to which records released under the Act may be put. Secondly, the HSE must also consider if the applicant may be entitled to access the records under the 2016 Regulations as a member of a class specified under the Regulations.

Section 37(2)

Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case, namely (a) the information contained in the records does not relate solely to the Applicant; (b) the third party 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 serious and imminent danger to the life or health of the individual. Therefore, I find that section 37(2) does not apply in this case.

Section 37(5)

Section 37(5) provides that a request for records that would be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates.

I am satisfied that subsection (b) does not apply in this case. On the matter of whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates, I should note that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to 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. It is important to note that inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors[2020] IESC 57, 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.

In relation to the issue of the public interest, it is also important to have regard to the comments of the Supreme Court inThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner[2011] IESC 26 (The Rotunda Case). It is noted that a public interest should be distinguished from a private interest.

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 of the Act (which makes clear that the release of records under the 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.

Given the inherently private nature of the information sought and having regard to the fact that the release under FOI must be regarded, in essence, as release to the world at large, I am satisfied that the public interest in granting access to the information sought does not, on balance, outweigh the significant public interest in protecting the privacy rights of the applicant-�s late son. I find, therefore, that section 37(5)(a) does not apply.

Section 37(8)(b) and the 2016 Regulations

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 belongs to one of a number of classes, including where the requester is the spouse or the next of kin of the individual and, 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 the refusing to grant the request.

For the purposes of the Regulations, next of kin means;

(a) Issue,

(b) Parent,

(c) Brother or sister,

(d) A niece or nephew, or

(e) Any other person standing nearest in blood relationship to the individual in accordance with section 71(2) of the Succession Act 1965.

The Regulations do not provide that all five categories of next of kin are entitled to be treated as the next of kin. Instead, they provide that the definition shall operate so that, where more than one paragraph of it is applicable in a case, the person falling within whichever paragraph is alphabetically the first shall alone be regarded as the next of kin of the individual concerned. Thus, a parent of the deceased (paragraph (b)) may be regarded as the next of kin only where there are no surviving children (paragraph (a)). Similarly, a brother or sister of the deceased (paragraph (c)) may be regarded as the next of kin only where there are no surviving children or parents.

The HSE noted from the records that the deceased is survived by two children. Consequently, the deceased-�s children are the next of kin within the meaning of the Regulations, not the applicant. I find, therefore, that the HSE was justified in refusing the applicant-�s request on the ground that the 2016 Regulations do not provide for a right of access to the records.

In conclusion, therefore, I find that the HSE was justified in refusing the applicant-�s request for access to the medical records of her late son 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 HSE-�s decision to refuse access, under section 37(1) of the FOI Act, to the medical records of the applicant-�s late son.

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