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Whether the HSE's decision to refuse access to records of a psychiatric nature relating to the applicant was justified under Sections 21, 23 and 28 of the FOI Act.

Case Summary

Issue

Whether the HSE's decision to refuse access to records of a psychiatric nature relating to the applicant was justified under Sections 21, 23 and 28 of the FOI Act.

Decision

The Senior Investigator affirmed the HSE's decision to refuse access to the records sought under section 28(3) of the FOI Act. She drew attention to the provisions of section 28(4) which requires the HSE to offer access to the records concerned to such health professional having expertise in the subject-matter of the records as the requester may specify.

Date of Decision: 07.07.2009

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner

Background:

The applicant's original request was received by the HSE on 22 May 2008. It sought access to medical records. The HSE's decision of 17 June 2008 was to refuse access on the grounds of section 28(1) of the FOI Act. The decision included a schedule of records held and a consideration of the public interest. The applicant sought an internal review of this decision and the decision issued by the HSE on 21 July 2008 upheld the original refusal citing  sections 28(3), 21(1)(b) and 23 of the FOI Act. The applicant then sought a review by the Commissioner.

I have now completed my review in accordance with section 34(2) of the FOI Act.  In conducting this review, I have had regard to the submissions made by the HSE and the applicant and to the provisions of the FOI Act.

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, Office of the Information Commissioner (authorised by the Information Commissioner to conduct this review)

Scope of Review

This review is concerned solely with the question of whether the HSE's decision was justified under the FOI Act. The applicant has provided some detail of the background to his application and the reasons why he requires the records. The submissions have stressed the fact that the applicant is legally represented and that he requires the records ''in order to allow him to particularise his claim against [the HSE]'' in the Courts. Given the provisions of section 8(4) which, subject to the provisions of the FOI Act,  prohibit decision makers from taking account of the reasons for a request, I consider that I must disregard the reasons given unless they are relevant to the application of sections of the Act e.g. in the event that a public interest balancing test has to be applied. 

Preliminary Matters

During the course of this review, my Office raised the possibility of effecting a settlement with the applicant's solicitor. This would have involved the applicant nominating a relevant health professional (see FOI Act, 1997 (Classes of Health Professionals) Regulations 2001 SI No 369 of 2001) to whom the records could be made available.  All parties would have had to agree to any proposed settlement.  However, the applicant indicated that a settlement would not be acceptable to him.  Therefore, I am now bringing this case to a conclusion by way of a formal binding decision. 

Secondly, the applicant raised the issue of partial release of records with this Office.  The HSE hase treated the file in its entirety as a single entity.  In my view, this is appropriate given that the contents of the file are medical/psychiatric records and the fact that they are necessarily interlinked.  Section 13 of the Act which deals with partial access to records provides that, where practicable, a request may be granted by offering access to an edited copy of a record but that this cannot be done if the copy provided would be misleading. I consider that, in this case, the release of some but not all of the records relating to the applicant's engagement with the HSE could be misleading.

Thirdly, while I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3), as amended, that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record or of matter that, if it were to be included in a record, would cause the record to be an exempt record. This means that the description which I can give of the content of the records and of the submissions in this case is limited.

Finally, it is relevant to draw attention to section 34(12)(b) of the FOI Act which provides that, in a review, "a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." This places on the HSE the onus of showing, to my satisfaction, that the decision to refuse access to the records at issue in this case is justified in terms of the provisions of the FOI Act.

Submissions

.

Findings

Although other exemptions were also relied upon by the HSE, I consider section 28(3) of the FOI Act to be the most appropriate provision in the circumstances of this review. Clearly, this section specifically covers the type of records at issue.

Sections 28(3) and 28(4)

Section 28(3) of the FOI Act provides that:

"Where a request under section 7 relates to

(a) a record of a medical or psychiatric nature relating to the requester concerned, or

(b) a record kept for the purposes of, or obtained in the course of the carrying out of, social work in relation to the requester,

and, in the opinion of the head concerned, disclosure of the information concerned to the requester might be prejudicial to his or her physical or mental health, well-being or emotional condition, the head may decide to refuse to grant the request."

Section 28(4) provides that:

"Where, pursuant to subsection (3), a head refuses to grant a request under section 7

(a) there shall be included in the notice under section 8 (1) in relation to the matter a statement to the effect that, if the requester requests the head to do so, the head will offer access to the record concerned, and keep it available for that purpose, in accordance with section 8 (3) to such health professional having expertise in relation to the subject-matter of the record as the requester may specify, and

(b) if the requester so requests the head, he or she shall offer access to the record to such health professional as aforesaid, and keep it available for that purpose, in accordance with section 8 (3)."

Section 8(3) provides for the records to be kept available for the purposes of access for a period of 4 weeks after the making of a decision.

In a letter of 13 March 2009 to the applicant setting out her preliminary views, Ms. Brenda Lynch, Investigator of this Office, dealt with the provisions of Section 28(3) of the FOI Act. She pointed out that the HSE's refusal of access to the records sought was based on the opinions of the HSE's health professionals and that it was open to the applicant to submit evidence from another health professional as to whether the release of the records in question might or might not be considered prejudicial to the applicant's "physical or mental health, well-being or emotional condition".  In the absence of any such evidence, it was pointed out that the view of the HSE's health professionals was likely to be accepted. The applicant was invited to make a submission in response to Ms. Lynch's preliminary views.  The applicant's solicitor contacted this Office on 3 April 2009 to discuss the case and an extension of time for the making of his response was allowed. On 17 April 2009 he wrote to Ms Lynch indicating that he would not be making any further submissions and seeking a decision in the matter.

During the course of the review, the Investigator raised various issues with the HSE including the fact that it appeared to have been some time since the applicant had been under the care of the HSE and therefore, the opinion of its health professionals was not a current one.  The HSE agreed to engage with the applicant with a view to conducting an up to date clinical assessment and two appointments were offered to the applicant by the HSE in this context. According to the HSE, the applicant declined both appointments.

The intention of section 28(4) would appear to be to ensure that information about possibly disturbing records may be given with the assistance of a health professional of the requester's choosing. The FOI Act does not appear to envisage any role for the Commissioner in relation to the making of arrangements between the HSE, the applicant and the health professional "having expertise in relation to the subject-matter of the record as the requester may specify". I note that section 28 (7) of the FOI Act defines 'health professional' and that regulations made under that section (SI No 369 of 2001) prescribe classes of health professional.

Requests falling to be refused under section 28(3) are not subject to the public interest balancing test at section 28(5)(a) of the FOI Act.

The records are of a psychiatric nature. In the absence of relevant evidence from a psychiatrist or other appropriate health professional, I have to base my decision in relation to whether disclosure of the information in them might be prejudicial to the applicant's health or condition on the only evidence available, that is, the evidence provided by the HSE. The applicant refers to previous decisions of the Commissioner in relation to section 28(3) of the FOI Act and says that no evidence of a real and tangible possibility of harm being caused to the general health, welfare and good of the requester has been proffered by the HSE. The former Commissioner explained his approach to the operation of the section 28(3) provision in Case Number 99189- X and a Health Board [published on www.oic.ie]. I believe that in this case, the HSE has provided evidence to support the opinion that there is a real and tangible possibility that harm might be caused to the welfare and good of the requester as a result of unmediated access to the records in question.

In reaching this conclusion, I note that the opinion provided by the HSE has not been contradicted or refuted by any other professional evidence.  I find that the HSE is justified in refusing access to these records on the basis that section 28(3) of the FOI Act applies. However, under section 28(4) the HSE must, at the applicant's request, offer access to the records to a health professional having expertise in the subject matter of the records.

Decision

Having carried out a review under Section 34(2) of the Freedom of Information Act, 1997 as amended, I hereby affirm the decision of the HSE.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such a review must be initiated not later than eight weeks from the date of this letter.

Elizabeth Dolan

Senior Investigator

07 July 2009