Whether the Hospital was justified under section 37 of the FOI Act in refusing to grant the applicant's request for access to her late father's medical records

28  September 2018 

Background

On 3 October 2017, the applicant made an FOI request to the Hospital for access to her late father's medical records as his next of kin. 

The Hospital's decision of 17 October 2017 refused to grant access to the records on the basis that they contained the deceased individual's personal information (i.e. section 37) and also that, having regard to all the circumstances, the public interest, including that in the confidentiality of personal information, would on balance be better served by refusing the request (i.e. Regulations made further to the provisions of section 37(8)). The applicant sought an internal review of this decision on 8 March 2018. She outlined various reasons why she needed the records, including inherited medical conditions and because she was contesting her father's will. She subsequently included copies of correspondence from another hospital. The Hospital's internal review decision of 3 May 2018 affirmed its refusal of the request.

On 22 June 2018, the applicant sought a review by this Office of the Hospital's decision.

I have decided to conclude my review by making a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the Hospital, and the applicant. I have had regard to the records at issue and to the provisions of the FOI Act, including the Regulations made by the Minister for Public Expenditure and Reform under section 37(8) i.e. Statutory Instrument (S.I.) No. 218 of 2016, as amended by S.I. No. 558 of 2016 (the Regulations). I have also had regard to my decision inCase No. 180077(Ms X and St James's Hospital), which concerned the applicant's request for her late father's medical records as held by that hospital. 

Scope of the Review

This review is confined to considering whether the Hospital has justified its refusal of the applicant's request. 

Findings

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant FOI body shows to my satisfaction that its decision was justified. 

Furthermore, and although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, the extent to which I can describe the records in my analysis and reasoning is very limited. 

Sections 37(1) and 37(8) - Access by certain categories of persons to personal information of a deceased individual 

It is not in dispute that the requested records contain the personal information of the applicant's father who is deceased. Section 37(1) of the FOI Act requires the refusal of an FOI request where access to the records would involve the disclosure of personal information (including personal information relating to a deceased individual). 

However, notwithstanding section 37(1), the Regulations provide for access by certain third parties, including the next of kin, to records of a deceased individual if, in the opinion of the head, 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. 

I have also considered account Guidance that was published in May 2017 by the Minister for Public Expenditure and Reform under section 48(1) of the FOI Act (i.e.Central Policy Unit Notice 25,available onwww.foi.gov.ie). Section 48(3) of the FOI Act provides that FOI bodies "shall have regard to" such guidelines when performing their functions under the FOI Act.

Section 3.2 of the Minister's Guidance list the following as factors to be considered:

• 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
• whether release would 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, which might include the release to a blood relative of records that show a hereditary medical condition. In relation to medical records in particular, the Guidelines 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 (the Medical Council Guide). They also say that, subject to other considerations, records containing the joint personal information of both the requester and the deceased might fall to be released
• 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.

I note a reference in the Hospital's submission to the fact that the applicant is not an executor of her late father's will. I presume that this was said simply in the context of ruling out whether the applicant may be entitled to access to the records as a personal representative of the deceased acting in due course of administration of his estate. Next of kin and personal representatives of the deceased acting in due course of administration of his or her estate are entirely separate categories of requester for the purposes of the Regulations. 

The Hospital accepts that the applicant is her late father's next of kin. However, it contends that, having regard to all the circumstances, the public interest, including that in the confidentiality of personal information, would on balance be better served by refusing the request.

Submissions on the circumstances and the public interest

I have already set out the reasons the applicant gave at internal review stage for seeking access to the records. She has made further arguments to this Office, some of which are not appropriate to detail in this decision. She also says that she is the eldest daughter, that there is nothing in her late father's will about his medical records, that she does not intend to damage his good name or character and does not want third party records. She says that her father would have "no problem" with her obtaining his records, which she says was evident from their relationship as seen by various hospital staff. She also says that her late father's body was released to her, that she organised his funeral as requested by him and that she cannot get the information she needs without access to his records. 

The Hospital notes that the applicant received her late father's interim death certificate from the Hospital in which he died, that the applicant's mother has given her consent for access to be granted to information about her that is in the deceased's records, as well as the contents of the letter supplied by the applicant at internal review stage. 

However, it believes that, taking account of the content of the records, the deceased would not have consented to their release to the applicant (or her mother) when living. It says that they contain inherently private and sensitive information, given by the deceased to clinical staff in confidence and for the purpose of assisting with his treatment and care, and on the understanding that it would be treated accordingly.

Analysis 
By making the relevant Regulations, the Oireachtas has determined that next of kin shall have a right of access to the records of deceased persons subject to consideration of the public interest and all the circumstances. 

On the matter of where the public interest lies and the factors to be considered, this Office generally has regard to theobitercomments of Macken J. inthe Rotunda case[The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v the Information Commissioner[2011] 1 IR 729, [2011] IESC 26, a link to which is available onwww.oic.ie]. 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. However, I must bear in mind that these comments were made in relation to the requirements of FOI legislation in general and not to the very specific and detailed provisions covering access by next of kin to medical records of deceased persons. The Regulations and guidance make it clear that a range of matters such whether the deceased would have consented to the release of the records to the requester when living, the nature of the records to be released, and "any other relevant circumstances" must be considered. Therefore, matters which may be seen as private interests cannot be excluded solely on the basis that they are not public interest factors. 

I should say at the outset that I have considered this case in the context of its own particular circumstances and examined the content of the records. 

The Hospital has not argued that the fact that the applicant has expressed concerns as to the testamentary capacity of the deceased provides, of itself, a sufficient reason to refuse her request. I would not have accepted such an argument, in any event. As other decisions from this Office have said, it might be argued that release of the medical records of a deceased person to the next of kin to allow for informed conclusions to be drawn as to the testamentary capacity of the deceased is a factor serving to support the release of such records.

Turning to the content of the records themselves, I accept the Hospital's argument that they are inherently private and confidential. I should make it clear that this factor in and of itself is not a sufficient reason to refuse access to the records of a deceased person. Previous decisions of this Office, such as those inCase Number 170521andCase Number 170427(available onwww.oic.ie) addressed this issue and ultimately directed the release of the medical records of a deceased person to the next of kin. However, in making my decision inCase Number 180077, I gave significant weight to the fact that the records in that case indicate that the applicant's late father would not consented to the applicant having access to his records when living. I consider it appropriate to take account of this in the present review also. I found nothing in the Hospital's records in this case that would set aside that position. I should also say that I do not consider the letter supplied by the applicant at internal review stage to contain any information relevant to my decision.

There is a public interest in ensuring transparency in the manner in which the Hospital carries out its functions and provides adequate care to patients, particularly vulnerable patients. The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. While it is not evident in this case that the next of kin of the deceased person had concerns about the standard of care and treatment afforded to him, this does not mean that the public interest in transparency and accountability is lessened. Indeed, it could be argued that only by having all relevant information available could the next of kin of a deceased person draw informed conclusions as to the standard of care afforded. 

At the same time, I must also take account of the fact that the Regulations explicitly recognise a public interest in preserving the confidentiality of personal information. Unlike the circumstances in Case Numbers 170521 and 170427, I am satisfied that the deceased's medical records indicate that he would not consented to the applicant having access to his records when living. As I explained in my decision in Case Number 180077, I cannot go behind what is on the face of a record. 

It is my view, having regard to particular circumstances of this case, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by refusing to grant the applicant's request, as the next of kin, for her late father's medical records. I will now go on to consider whether any right of access arises under the other provisions of section 37. 

Section 37(1)

The records concern the applicant's late father's medical history, and also refer to other identifiable individuals. I find them to be exempt under section 37(1) of the FOI Act. 

Section 37(2)

There are some circumstances, provided for at section 37(2) of the FOI Act in which the exemption at section 37(1) does not apply. I do not consider any of the circumstances set out in section 37(2) to apply 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. 

I do not consider the applicant to be entitled to access to the records under section 37(5)(b). It is not relevant whether the records would be of benefit to her. The question is whether the grant of access would be of benefit to her late father and the other persons referred to in his records. I have no reason to consider this to be the case. 

In considering section 37(5)(a), and as set out above, I accept that the grant of access to the records would serve the public interest in ensuring the Hospital's openness and accountability regarding its treatment of the applicant's late father. However, the withheld records contain personal information about the applicant's late father and other identifiable individuals. I am satisfied that directing the grant of access to the records would result in a significant breach of their right to privacy. 

On balance, I find that the weight of the public interest in granting the applicant's request is not such that it outweighs the public interest that the right to privacy of the applicant's late father and other identifiable individuals should be upheld.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Hospital's refusal to grant the applicant's request. 

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