Whether the HSE was justified in its decision to refuse the applicant's request for all records relating to his engagements with the HSE's psychological and psychiatric services under section 37(3) of the FOI Act

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

Background

In his FOI request of 22 July 2017, the applicant sought access to all records relating to his engagements with the HSE's psychological and psychiatric services. In its original decision of 9 August 2017, the HSE refused the request under section 37(3) of the FOI Act but offered the applicant an opportunity to nominate a health professional to access the records concerned on his behalf, under section 37(4). The applicant sought an internal review of that decision on 17 August 2017, following which the HSE affirmed its original decision. On 8 September 2017, the applicant applied to this Office for a review of the HSE's decision.     

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of HSE, and to the contents of the records at issue, copies of which were provided to this Office for the purpose of conducting the review. I have decided to conclude the review by making a formal, binding decision on the matter.

Scope of Review

This review is concerned solely with the question of whether the HSE was justified in refusing access to the information sought under section 37(3) of the FOI Act. 

Preliminary Matter

While I am required to give reasons for my decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. This means that the reasons I can give for my decision in this case are quite limited.

Analysis and Findings

Section 37(3) of the FOI Act provides that an FOI body may refuse a request for records of a medical or psychiatric nature relating to the requester concerned if it considers that disclosure of the information concerned to the requester might be prejudicial to his or her physical or mental health, well-being or emotional condition. However, if it chooses to do so, it must, under section 37(4), offer access to such health professional having expertise in relation to the subject matter of the records as the requester may specify. 

It seems to me that the intention of section 37(4) is to allow an appropriate health professional with relevant expertise to make a more informed decision as to whether access to such sensitive records might be made available to requesters in such a manner that seeks to avoid the harms identified in section 37(3). I also note that the threshold for meeting the exemption is quite low, e.g. disclosure might be prejudicial to a requester's well-being or emotional condition.

In this case, the HSE has provided a report from a treating consultant psychiatrist who has set out his views as to why unsupported access should not be granted in this case. While I do not consider it appropriate to repeat those reasons here, I accept that the HSE has submitted sufficient evidence to support its reliance on section 37(3) to refuse the request. I find that the HSE was justified in refusing access to the records under section 37(3) of the FOI Act and I note that it has complied with the provisions of section 37(4) by offering the applicant an opportunity to nominate a health professional to access the records concerned on his behalf. 

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 to refuse the applicant's request for all records relating to his engagements with the HSE's psychological and psychiatric services under section 37(3).

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