Whether the Hospital was justified in its decision to refuse the applicant's request for access to information relating to his biological mother contained in a labour ward book under sections 35 and 37 of the FOI Act

15/01/2018

Background

On 6 September 2017 the applicant sought access to information concerning his biological mother. He provided details of his date of birth, his biological mother's name, his father's name, and details of his baptism. On 28 September 2017 the Hospital issued its original decision in which it decided to part-grant the request. It refused access to maternity and paediatric records under section 15(1)(a) on the ground that no such records exist or could be found. It confirmed that it located an entry in a labour ward book recording a named individual as having delivered a liveborn male on the applicant's birth date. It provided the name of the individual, the time of birth and the baby's weight at birth. It refused access to other entries included in the register under sections 35 and 37 on the ground that the information is confidential and also personal information relating to the individual concerned.

The applicant sought an internal review of that decision on 29 September 2017, following which the Hospital affirmed its original decision. On 25 October 2017 the applicant sought a review by this Office of the Hospital's decision. 

I note that on 29 November 2017 Mr Benjamin O'Gorman of this Office contacted the applicant and outlined his view that the record at issue was exempt from release under section 37 of the FOI Act because it contains the personal information of a third party. However, the applicant has indicated that he wants a formal decision on the matter.

Accordingly, I have decided to conclude this review by way of a formal, binding decision. In concluding this review, I have had regard to the correspondence between the applicant and the Hospital as outlined above, and to the correspondence between this Office and both the applicant and the Hospital on the matter. I have also had regard to the content of the record at issue. 

Scope of Review

During the course of this review the applicant confirmed that he required a review of the Hospital's decision to redact certain information from the labour ward book entry. This review is therefore concerned solely with the question of whether the Hospital was justified in refusing access to the redacted information in question.

Analysis and Findings

Section 37
Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of a request if access to the record concerned would involve the disclosure of personal information relating to individuals other than the requester, including personal information relating to deceased individuals. Furthermore, section 37(7), also subject to other provisions of section 37, provides for the mandatory refusal of a request where access to the record at issue would, in addition to disclosing personal information relating to the requester, disclose personal information relating to individuals other than the requester, commonly known as joint personal information.

The information at issue relates to the medical history and age of the woman identified in the applicant's request. I am satisfied that the information in the record is either personal information relating to a party other than the applicant or joint personal information. Accordingly, I find that section 37(1) applies. 

Section 37(2)
There are some circumstances, provided for at section 37(2), in which section 37(1) does not apply. Having examined the record at issue, I am satisfied that none of the circumstances identified at section 37(2) arise in this case.

Section 37(5)
Section 37(5) provides that a record which is otherwise exempt under section 37(1) may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. No evidence has been presented to this Office to suggest that the release of the withheld information would be to the benefit of the party concerned. I find, therefore, that section 37(5)(b) does not apply. 

Section 37(5)(a) - The Public Interest
On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual to whom the information relates. In determining this question, I have had regard to the obiter 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; [2013] 1 I.R. 1; [2012] 1 I.L.R.M. 301 (the Rotunda judgment), wherein I note 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.

While the applicant is aware of the Rotunda judgment, he has nevertheless argued that the record should be released so that he may trace his biological mother. Having regard to the Rotunda judgment, in the context of determining whether to grant a request in the public interest under section 37(5)(a), the reasons given for a request may be considered only insofar as they reflect a true public interest. 

The Long Title of the FOI Act reflects that there is a general public interest in openness and accountability with respect to information held by public bodies, provided that it is consistent with the right to privacy. On the other hand, the public interest in respecting the right to privacy is a very strong public interest and is recognised in the language of section 37 of the FOI Act. This public interest in protecting privacy rights is also reflected in the Long Title to the Act. Furthermore, the right to privacy has been recognised as an unenumerated right under the Constitution. I am also mindful that the strong protection afforded to privacy rights under FOI is consistent with Article 8 of the European Convention on Human Rights. Also, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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 carefully considered the matter, I do not consider that the public interest in the release of the information sought in this instance outweighs, on balance, the significant public interest in protecting the privacy rights of the person to whom the information relates. I find, therefore, that section 37(5)(a) does not apply. 

For the sake of completeness, I would like to address the applicant's comments that his biological mother is, in all likelihood, deceased. As I have explained above, the protection afforded by section 37(1) to personal information of individuals extends to the protection of personal information relating to deceased individuals. However, under section 37(8), the relevant Minister may provide by regulation for the grant of a request where the individual to whom the information relates is dead and the requester concerned is a member of a class specified in the regulations.

In exercise of those powers, the Minister for Public Expenditure and Reform introduced the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016, as amended. The Regulations provide for a right of access to records containing personal information relating to a deceased individual by certain categories of requester. One such category is where the requester is the spouse or the next of kin of the individual and, in the opinion of the FOI body, 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 to grant the request.

In May 2017, the Minister published revised guidance concerning the operation of the regulations. The guidance state that applicants under this category would be required to produce evidence of their relationship to the deceased, namely an affidavit or other acceptable proof establishing the relationship and showing the necessary State certificates. In this case no evidence has been presented to this Office that the individual concerned is deceased or that the applicant is her next of kin. As such, I have not considered whether a right of access exists under the 2016 Regulations.

In the circumstances, I find that the Hospital was justified in its decision to refuse access to the redacted information sought by the applicant under section 37(1). Given that finding, I do not consider it necessary to consider the applicability of section 35 to the information at issue.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Hospital in this case.

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