Whether the Hospital was justified in its decision to refuse access information relating to the applicant-™s birth mother under section 37 of the FOI Act on the ground that disclosure of the information sought would involve the disclosure of personal information relating to the individual concerned

10/08/2018

Background

On 14 January 2018 the applicant sought from the Hospital details relating to her birth mother. Specifically, she asked if the Hospital holds non-medical information such as full name or date of birth or address or next-of-kin etc. which would lead to the proper identification of a named individual and whether the Hospital would co-operate with a request by the General Registrar's Office for this information. It appears that the applicant has concerns as to whether the name she cited in her request is the true name of her birth mother.

On 19 February 2018 the Hospital informed the applicant that her request had been processed pursuant to the FOI Act and issued its original decision in which it decided to refuse the request. It refused access to maternity records pertaining to the named individual and paediatric records relating to the applicant under section 15(1)(a) on the ground that no such records could be found. It confirmed that it had located an entry in a labour ward book as had previously been notified to the applicant.
The applicant had sought an internal review of that decision, following which the Hospital affirmed its original decision. In her internal review decision of 27 March 2018, the internal reviewer explained that the applicant's request was treated as as a request for records that might contain the non-medical information the applicant had identified relating to the named individual, namely full name, date of birth, address, next-of-kin etc.

She refused access to a record that was located in the Medical Social Work Department relating to the named individual, apart from a small amount of information relating solely to the applicant, on the ground that it contains personal information relating to the named individual. However, she informed the applicant that nothing in the record gave her reason to believe that the name of the individual as cited by the applicant was an alias. The internal reviewer also informed the applicant that the Hospital had engaged with the General Registrar's Office and that the only information it could communicate was that a baby girl was born to the named individual on the applicant's date of birth.

On 23 March 2018 the applicant sought a review by this Office of the Hospital's decision. In conducting 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.

Scope of Review

It is important to note at the outset that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought. Furthermore, this Office has no role in determining whether or not the Hospital must pass information to the General Registrar's Office.
During the course of this review the applicant confirmed that she wanted access to information regarding her birth mother. She contended that the address for her mother as stated on her birth certificate is incorrect as her mother never resided at the address in question and she was seeking, in particular, access to an address given as the named individual's home address to the Medical Social Work Department.

The record located by the Hospital relating to the named individual contains certain non-medical information relating to that individual. Access to that information has been refused by the Hospital. Accordingly, this review is confined solely to the question of whether the Hospital was justified in refusing access to the information in that record relating to the named individual.

Analysis and Findings

Section 37(1) of the FOI Act provides that access to a record shall be refused if granting access would involve the disclosure of personal information relating to an individual other than the requester. Section 2 of the FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential.

Having examined the record located in the Medical Social Work Department, I am satisfied that the information sought by the applicant relating to the named individual is personal information relating to that individual. I find, therefore, that section 37(1) applies to the information sought.
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. Subsection (2)(d) provides that subsection (1) does not apply if (d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public.

The applicant noted in her submissions that under the Civil Registration Act 1863, the Register was open to search by members of the public upon payment of a fee. She also contended that the information required on her birth certificate would normally include her mother-™s name and her mother-™s home address. She noted that under the Civil Registration Act 1863 it was the duty of the Rotunda registering official to accurately obtain the name and address of the birth mother. The Hospital submitted that the birth mother-™s name as provided for on the applicant-™s birth certificate is, in its view, correct, and that the address contained in the Medical Social Work record is exempt under section 37(1), and none of the provisions in section 37(2) serve to disapply this exemption. It contended that the Hospital took names and addresses for the purpose of registering a birth at face value. It contended, therefore, that the address contained on the applicant-™s birth certificate is the only address that would be available to the public under the Civil Registration Act 1863.

I would note that this Office has no role in examining whether or not the Hospital adhered to legislation other than the FOI Act, nor does it examine the manner in which FOI bodies perform their functions generally. In my view section 37(2)(d) does not serve to disapply section 37(1) in this instance. The specific information sought and contained in the record at issue is not recorded on the applicant-™s birth certificate. No evidence has been presented to me to suggest that the individual in question was informed by the Hospital that the particular information she gave to the Hospital belonged to a class of information that would or might be made available to the general public, prior to her having given it. I find that subsection 2(d) does not apply. For completeness, I also find that none of the other provisions of section 37(2) apply.

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates.

It has not been argued that releasing the records would benefit the person to whom the information relates and I am satisfied that section 37(5)(b) does not apply in the circumstances. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals 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 applicant in her submission to this Office contended that there was a public interest in having access to any information that would assist in correcting an inaccurate birth certificate, and in ensuring the Hospital maintains accurate records in respect of its patients. The applicant noted that the address provided on her birth certificate was that of an institution, and she submitted that no record exists showing this was an address at which her birth mother ever resided. She contends that her birth certificate is therefore inaccurate, and has stated that she seeks the information being withheld in order to correct the alleged inaccuracies under the Civil Registration Act 1863. The Hospital's position is that it has two addresses for the applicant's birth mother on file, one of which is the address of the institution, and therefore the information contained on the applicant's birth certificate cannot be deemed 'inaccurate'. I note that the applicant contended that release of the redacted information would enhance the public interest in the maintaining of accurate records by the Hospital. She contended that release of the record would allow the General Registrar-™s Office to ensure that the record of her birth taken by the Hospital was correct. However, the Hospital contended that release of the record would breach its ethos and the duty of confidentiality owed to its patients.

I accept that there is a public interest in ensuring the transparency and accountability of public bodies, and in ensuring that accurate records are maintained by same. On the other hand, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will 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.

It seems to me that the public interest has been served to some extent in this case by the partial release of the records that relate specifically to the applicant. The Hospital has attempted to strike a balance between making as much information as possible available to the applicant while seeking to protect the privacy rights of the third parties concerned. The question I must consider is whether the public interest in releasing the information sought outweighs, on balance, the public interest in protecting the privacy rights of the individual to whom the information relates.  In my view, release of the redacted information, in circumstances where release under FOI is, in effect, disclosure to the world at large, would involve a significant breach of the privacy rights of the individual concerned. 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 the Hospital cannot be sure of whether her birth mother is alive or 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).

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