Whether the Hospital was justified in refusing access to information in a hospital entry, on the ground that it is exempt under sections 35 and 37 of the FOI Act

24 February 2020

Background

On 23 October 2018, the applicant made an FOI request to the Hospital for information to try to trace the identity of her grandmother. She provided details of her mother-�s name and date of birth, as well as the name of her grandmother. On 21 November 2018, the Hospital confirmed that it had located the labour ward entry for a woman with the name of the applicant-�s grandmother who was admitted to the Hospital and give birth on the date specified by the applicant. The Hospital refused access to information on the woman-�s age on the ground that it was exempt under sections 35 and 37 of the FOI Act. On 26 January 2019, the applicant applied for an internal review of the Hospital-�s decision. She said that its decision -�denied my siblings and I the right to know the age of my grandmother at the time of my mother-�s birth-�. The Hospital issued an internal review decision on 25 February 2019, in which it affirmed its original decision. On 12 May 2019, the applicant applied to this Office for a review of the Hospital's decision.

In conducting my 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 parties, as well as the content of the record that was provided to this Office by the Hospital for the purposes of this review. I am sorry for the delay in dealing with this case, which took longer than I would have wished.

Scope of this Review

I note that in previous FOI requests, the Hospital granted the applicant access to certain pieces of information contained in the record, which it said related to the applicant-�s deceased mother. The information to which the applicant seeks access and which remains withheld is the maternal age of the woman named in the record. My review is solely concerned with whether the Hospital was justified in refusing access to this information under sections 35 or 37 of the FOI Act.

Preliminary Matters

Before considering the exemptions claimed, I wish to note the following points. First, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. Therefore, I can only consider the applicant's reasons insofar as they might be construed as a public interest argument. Secondly, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Finally, I note that the Investigator contacted the Hospital to explore the possibility of resolving this matter outside of the FOI Act, but was unsuccessful. It seems regrettable to me that this case could not have been dealt with outside of FOI. I am reminded of the Supreme Court-�s comment 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) that -�[I]t is difficult to resist the instinct that a practical solution could have been found and that it would all have been much simpler if the FOI Act had not invoked-�. I also note that section 11(8) of the FOI Act provides that nothing in the FOI Act shall be construed as prohibiting or restricting an FOI body from publishing or giving access to a record (including an exempt record) otherwise than under the FOI Act where such publication or giving of access is not prohibited by law. Nonetheless, I must proceed to make a legally binding decision within the provisions of the FOI Act and will consider them now.

Analysis and Findings

Section 37 -� Personal Information

Section 37(1)

Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve disclosure of personal information. 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. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include: -�(viii) information relating to the age (etc.) of the individual-�. The information at issue is the maternal age of the woman named in the record. I am satisfied that this is personal information relating to a party other than the applicant and find that section 37(1) applies.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. Having examined the record, I am satisfied that none of the circumstances in section 37(2) applies to the information.

Section 37(5) -� The Public Interest

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the request would benefit the person 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 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 the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, 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 unenumerated 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.

As noted above, I am required to disregard the applicant-�s reasons for her FOI request. Therefore, I can only take into account the purpose for which she seeks this information insofar as she identifies a public interest. The applicant says that she is trying to find out the heritage of her grandmother. She quotes a comment from TUSLA-�s spokesperson that -�everyone deserves to know who they are-�. She says that she and her siblings have spent many years trying to get this information and have been denied it. She says they would be satisfied if the Hospital would just confirm if the information they are presenting is correct. She says that a confirmation of the age would allow them to confirm the identity of their grandmother. While I have a great deal of sympathy for the applicant, I am bound to treat her interest as a private rather than a public interest. Moreover, I do not consider that releasing the withheld information would serve the public interest in transparency around the Hospital. I must also bear in mind that release under FOI is effectively release to the world at large.

In the circumstances and on balance, I do not consider that the public interest in releasing this information outweighs the public interest that the right to privacy of the person to whom the information relates be upheld. I find that section 37(5)(a) does not apply. It has not been argued that releasing the information would benefit the person to whom the information relates and I find that section 37(5)(b) does not apply.

Section 37(8)

In the circumstances, I believe that I should address section 37(8) for completeness. Section 37(8) provides that notwithstanding subsection (1), the Minister for Public Expenditure and Reform may provide by regulations for the grant of an FOI request, where the individual to whom the record concerned is deceased and the requester is a member of a class specified in the regulations. The Freedom of Information Act 2014 (Section 37(8)) Regulations 2016, S.I. No. 218/2016 (Regulations) provide for the grant of access to the records of a deceased individual if the requester is the spouse or the next of kin of the individual and, 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.

In a previous FOI request by the applicant in 2017, the Hospital considered section 37(8). It said that although the applicant said she could provide details of her mother-�s next of kin, it was the next of kin of the woman named in the record who would need to seek access under section 37(8). In this FOI request, the applicant enclosed correspondence from a genealogist who stated that she believed that next of kin was defined as -�a person-�s closest living relative or relatives-� and attached her research for the applicant.

Regulation 8 of the Regulations states that -�next of kin-� means: (a) issue, (b) parent, (c) brother or sister, (d) a niece or nephew, or (e) any other person standing nearest in blood relationship to the individual in accordance with section 71(2) of the Succession Act 1965. Regulation 9 provides that the definition of -�next of kin-� in Regulation 8 shall operate so that, where more than one paragraph of it is applicable in a given case, the person falling within whichever paragraph is numerically the lowest shall alone be regarded as the next of kin of the individual concerned.

The Minister has published Guidance relating to section 37(8) and the Regulations titled -�Freedom of Information Access to records/guardians Access to records relating to deceased persons prepared under section 37(8) of the Freedom of Information Act 2014-� and dated May 2017. It states that in order to establish their claim to be the next of kin of the deceased, the requester would be required to submit an affidavit or other acceptable proof establishing the relationship and showing the necessary State certificates. Having reviewed the record, I am satisfied that in all probability the individual concerned is deceased. However, and although I note the genealogist-�s correspondence, I do not have an affidavit or other acceptable proof before me to establish whether the applicant is -�the next of kin-� of the individual concerned, for the purpose of the Regulations. Accordingly, I do not have a basis upon which to find that Regulation 7 of the Regulations applies so as to afford the applicant a potential right of access to the withheld information.

In conclusion, I find that the Hospital was justified in refusing access to the withheld information under section 37(1) of the FOI Act. Given this finding, I am not required to consider the Hospital-�s claim for exemption under section 35 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the Hospital's decision, under section 37(1) 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