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Case Number: 170176

Whether the HSE was justified in its decision to refuse the applicant's request for access to the medical and psychiatric records of her late husband on the basis that section 35(1)(a) and section 37 applied

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

In her FOI request of 19 December 2016, the applicant sought access to "all files, notes, records, results, scans, x-rays, etc relating to her late husband, [Mr E] ". The request was sent to the HSE Mental Health Services in Sligo. In its original decision of 23 January 2017, the HSE refused access to the information sought. The applicant sought an internal review on 26 January 2017 and the internal review decision of 2 February 2017 affirmed the original decision on the basis that section 35(1)(a) and section 37 of the FOI Act applied. An application for a review of the HSE decision was made to this Office on 12 April 2017.

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of HSE, to the records at issue, and to the provisions of the FOI Acts. I have decided to conclude the review by making a formal, binding decision.

Scope of Review

This review is concerned solely with the question of whether the HSE was justified in refusing access to the information sought by the applicant relating to her late husband

Analysis and Findings

The HSE has refused access to the information sought on the grounds that section 35(1)(a) and section 37 apply. I consider section 37 to be more relevant and will address it first.

Section 37 - Personal Information
Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information(including personal information of a deceased individual). The FOI Act defines the term "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 the body as confidential. The definition also contains a list of 14 specific types of information including information relating to the medical history of an individual. The information at issue in this case, being the psychiatric records of the applicant's late husband, is clearly his personal information to which section 37(1) applies.

There are some circumstances, provided for at section 37(2), in which the exemptions at section 37(1) do not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of their 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 a serious and imminent danger to the life or health of an individual. I find that section 37(2) does not apply to the withheld information.

I turn now to section 37(5) which also provides for exceptions to the section 37(1) exemption. I see no basis for finding that the grant of the request would benefit the individual to whom the information relates and I am satisfied that section 37(5)(b) does not apply in this case.

Section 37(5)(a) - Public Interest

Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. In relation to the issue of the public interest, it is important to have 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] IESC 26 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. The FOI Act further recognises the public interest in persons being able to exercise their rights under the FOI Act, although this alone would not be sufficient, in my view, to warrant the breach of an individual's right to privacy. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - in both in the language of section 37 and in the Long Title to the Act (which makes 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. I find that, in the circumstances of this case, the right to privacy of the individuals whose personal information is in the records outweighs the public interest in granting the applicant's request.

Section 37(8) - Access to the personal information of minors and deceased persons

Section 37(8) provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform ("the Minister") may provide by regulations for the grant of
an FOI request in certain circumstances where the requester is the parent or guardian of the individual to whom the record relates or where the individual to whom the information relates is dead. The Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016), as amended are the relevant regulations in this case (the Regulations).

Regulations and related matters
Regulation 7 of the Regulations sets outs the classes of person to whom records relating to deceased persons may be disclosed. It is accepted that the applicant falls into the class described at regulation 7(b) i.e. spouse or next of kin of the deceased. The Regulations provide for release of records of deceased persons "to the spouse ....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 the request."

In May 2017, the Minister for Public Expenditure and Reform published revised Guidance relating to section 37(8) and the Regulations under section 48(1) of the FOI Act. Section 48(3) provides that FOI bodies "shall have regard to ... any guidelines in the performance of their functions under this Act."

The guidance published by the Minister refers to factors to be taken into consideration in deciding if release is appropriate to persons in this category, including:

• the confidentiality of personal information, as set out in section 37(1) of the FOI Act;
• 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
• would release 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. The Guidelines say 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, they say that due regard should be had to the confidentiality of medical records in accordance with the Irish Medical Council Guide to Ethical Conduct and Behaviour (8th edition published May 2016)
• whether the requester can get the information they want without accessing the records of the deceased
• any other relevant circumstances that the requester may set out.

Furthermore, the Medical Council Guide says that patient information remains confidential even after death. That Guide 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.

As noted above release of records under FOI is generally accepted to be the same as releasing the records to the world at large i.e. without any restriction.
However, the fact that release under FOI is akin to release to the world at large, of itself, would not provide a reasonable ground for refusing access to a category of requester that the Oireachtas has determined should be granted access in appropriate circumstances.

The Commissioner also considers that, in having regard to the circumstances when considering where the balance of the public interest lies, it may be reasonable to consider the reasons why a request was made.

The HSE position
The HSE submission sets out that it is of great importance to it that clients and their families feel that they can engage with a high degree of confidentiality and that people feel that information given to the HSE will be treated with the appropriate level of confidentiality. It identifies this as being of particular importance to clients of its Mental Health Service, which is relevant here.

According to the HSE, there is no evidence that [Mr. E] foresaw his death or expressed any wishes as to how his notes might be shared after his death. It considers that the confidentiality of the records should be preserved. The HSE also notes, that while the applicant falls into the category of "spouse" in accordance with the regulations, she was not listed as "next of kin" on any of his admissions to the Mental Health Services.

The HSE has also pointed out that, while in the normal course of events, it is precluded from enquiring as to the reasons records are sought, this is not the case where the records sought are those of a deceased person. In this case, the applicant said that access to the records was sought in the context of a Coroner's Inquest in to [Mr. E's] death. The HSE has pointed out that the Coroner has full authority to seek a full copy of the deceased's medical or psychiatric records should he deem them necessary for the purposes of carrying out an Inquest. On the matter of the public interest, the HSE position is that the public interest will be served by the Coroner's Inquest, which will establish the cause of death. The HSE is of the view that the public interest in openness and accountability of public bodies as well as the public interest in ensuring that persons can exercise their rights under FOI is not sufficiently strong to outweigh that of protecting the privacy of the individual to whom the records relate.

Having considered all of the above, including the submissions of the applicant, and examining the records at issue, I am satisfied that the records at issue are confidential and inherently private. I have been given no information that would support the view that the deceased would have consented to the release of the records to the applicant when living. Neither have I have been given information which would allow me to conclude that the nature of the relationship between the applicant and the deceased and the circumstances of the relationship prior to the death of the deceased, or any other relevant circumstances, is other than that reflected in the contents of the records at issue. I am satisfied any public interest relevant to the circumstances leading up to the death of the deceased will be served to some extent by the Coroner's Inquest and that the Coroner has the required authority to obtain any relevant information he deems necessary for the purposes of an Inquest.

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 Regulation 7(b) of the regulations.

Other Third Parties
The records contain small amounts of information relating to parties other than the applicant or her late husband, which is personal information that is exempt under section 37(1) of the FOI Act. 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 the withheld information is exempt from release under section 37(1) of the FOI Act.

Other exemptions
As I have found all of the withheld information to be exempt under section 37, it is not necessary for me to deal with the application of section 35, as claimed by the HSE.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the HSE and find that the information sought is exempt from release under section 37 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.

Elizabeth Dolan
Senior Investigator