Whether the HSE was justified in its decision to refuse to grant access in full to records under section 37 of the FOI Act

11 June 2020

Background

On 2 January 2020 the applicant requested access to her medical records held by the HSE. In its decision of 28 February 2020, the HSE granted access to some of the records and refused access in part to other records under section 37(1) (Personal information) and 37(3) of the Act. In accordance with section 37(4) of the Act, the HSE offered the applicant an opportunity to nominate a health professional to access parts of the withheld information in the records on her behalf. Following a request for an internal review, the HSE affirmed its decision on 26 March 2020. On 1 April 2020 this Office received an application for review from the applicant.

I consider that this review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to submissions received from the HSE and to correspondence between the applicant, the HSE and this Office. I have also had regard to the content of the records and to the provisions of the FOI Act. The applicant was invited to make a submission but none was received.

Scope of Review

The review relates solely to whether the decision of the HSE to refuse access in part to records in the applicant's medical file was justified on the basis of section 37(1) and sections 37(3) and 37(4) of the FOI Act. 

Preliminary Matters

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

Analysis and Findings

Section 37(1) Personal Information
Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. Section 2 of the Act defines "personal information" as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. Section 2 goes on to list fourteen categories of personal information including the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.

Section 2 of the Act includes an exclusion to the definition of personal information that relates to members of staff of an FOI body. It states that in a case where the individual holds or held a position as a member of staff of an FOI body, personal information does not include the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid. Similarly, where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service does not comprise personal information.

Generally speaking, the exclusions contained in the definition of personal information are intended to prevent FOI bodies from relying on section 37 to refuse to grant access to records created by individual staff members or service providers in the course of their work. They do not deprive public servants, or individual contractors, of the right to privacy generally. Essentially, when considering the exclusions, a distinction must be drawn between the role of a staff member or contractor as a provider of a public service which is subject to oversight and the privacy rights of those same individuals regarding their private employment affairs. In my view, the plain language of the FOI Act strikes this balance by excluding work and role related functions from the definition of personal information but including details relating to matters such as personnel files and employment affairs, which are specifically included in the definition of personal information.

While I cannot discuss their content in any detail, I can state that, apart from certain information on the applicant’s health and treatment that I will deal with below, much of the information withheld comprises small references to the personal information of individuals other than the applicant herself. However, some of the withheld information refers to members of staff of an out of hours service called South Doc.

In a submission to this Office, the HSE said South Doc employees are employed on a private capacity and “the information redacted would constitute personal information”. However, in one of its policy documents South Doc states that it “provides a service for the Health Services Executive (HSE) and is therefore a service provider”.

I am satisfied that certain withheld information in the records refers to a company which is under a contract for services and consequently may be regarded as providing a service on behalf of the HSE. In addition, I am satisfied that information relating to that service provider is not of a type that would come within the exclusions to the definition of personal information. Accordingly, where they appear in a part of a record other than that dealt with below under section 37(3), those references to persons employed by or contracted to an FOI body fall to be released.

I find that the remaining withheld information concerning persons who are not staff or contractors is personal information relating to individuals other than the applicant and is exempt under section 37(1) of the Act.

Section 37(2)
There are some further circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. I am satisfied that none of these are relevant in this case.

Section 37(5)
Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (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 information would be to the benefit of the person to whom the information relates.

I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.

In considering the public interest test in section 37(5)(a), I must have regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner (the Rotunda judgment), available at www.oic.ie. In its judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, “a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law” must be distinguished from a private interest for the purpose of section 37(5)(a).

The FOI Act itself reflects a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business. Thus, in this case, I find that there is a general public interest in openness and accountability as to the manner in which the HSE carried out its functions, including the applicant’s medical care.  On the other hand, the FOI Act recognises a very strong public interest in protecting privacy rights in the language of section 37. It is also worth noting that the right to privacy also has a Constitutional dimension as one of the unenumerated personal rights under the Constitution. 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. I cannot identify a public interest which would override the Constitutional rights to privacy of the third parties to whom the information in the records relate. As regards section 37(5)(a), as mentioned earlier, the public interest in openness and transparency in how the HSE dealt with the applicant has been served to a large extent by the release to her of the bulk of the information in the records. I therefore find that the public interest in granting the request does not override the public interest in upholding the privacy rights of other individuals involved. Accordingly, I find that section 37(1) of the Act applies to the withheld information in the records.

Sections 37(3) and 37(4)

Section 37(3) of the FOI Act provides:

"Where an FOI request relates to –

(a)  a record of a medical or psychiatric nature relating to the requester concerned, or

(b)  a record kept for the purposes of, or obtained in the course of the carrying out of, social work in relation to the requester,

and, in the opinion of the head concerned, disclosure of the information concerned to the requester might be prejudicial to his or her physical or mental health, well-being or emotional condition, the head may decide to refuse to grant the request."

Section 37(4) provides:

"Where, pursuant to subsection (3), a head refuses to grant an FOI request –

(a)  there shall be included in the notice under section 13(1) in relation to the matter a statement to the effect that, if the requester requests the head to do so, the head will offer access to the record concerned, and keep it available for that purpose, in accordance with section 13(3) to such health professional having expertise in relation to the subject-matter of the record as the requester may specify, and

(b)  if the requester so requests the head, he or she shall offer access to the record to such health professional as aforesaid, and keep it available for that purpose, in accordance with section 13(3)."

Section 13(3) provides for the records to be kept available for the purposes of access for a period of 4 weeks after the making of a decision.

Requests falling to be refused under section 37(3) are not subject to a public interest balancing test.

It seems to me that the intention of section 37(4) is to allow an appropriate health professional with relevant expertise to decide whether such sensitive information might be made available to requesters in such a manner that seeks to avoid the harms identified in section 37(3). While this Office takes the view that there must be evidence presented in support of the opinion that release of the records might be prejudicial to the requester’s physical or mental health, well-being or emotional condition, it is noteworthy that the threshold for meeting the exemption is quite low as it is sufficient for the body to show that release of the records might give rise to the harm identified.

It is not in dispute that all of the records at issue are of a medical or psychiatric nature relating to the applicant. I must base my decision in relation to whether disclosure of the information in the records might be prejudicial to the applicant's physical or mental health, well-being or emotional condition, on the evidence provided by the HSE having regard, of course, to the content and context of the records themselves.

I have considered the evidence presented by the HSE who consulted with a medical professional who is familiar with the applicant’s case in support of its view that section 37(3) should apply to some (but not all) of the information in her health care records. I note that the records are relatively recent and that the applicant has not provided any information which might serve to refute the HSE's position. I do not consider it appropriate here to elaborate on the HSE's reasons for applying this section of the Act, or to describe in any detail the contents of the records to which section 37(3) has been applied and which I have carefully examined. The HSE stated that it is willing for an appropriate medical professional to meet with the applicant to discuss the contents of her records.  In these circumstances, I am satisfied that the HSE has justified its reliance on section 37(3) of the FOI Act. 

I find that the HSE was justified in refusing access to the withheld information in the records on the basis that sections 37(3) and 37(4) of the FOI Act apply. The HSE's offer under section 37(4) to offer access to the records to an appropriate health professional, to be nominated by the applicant, remains.  I note that section 37(9) of the FOI Act defines 'health professional' and that regulations made under that section (SI No 368 of 2001) prescribe classes of health professional. The HSE stated that to date the applicant has not availed of its offer.        

I appreciate that this decision will be a disappointment to the applicant but I am conscious of the fact that the purpose of section 37(3) is to protect the physical or mental health, well-being or emotional condition of the applicant.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the HSE's decision. I affirm its decision to refuse access to parts of records under section 37(1) of the FOI Act, on the basis that they contain the personal information of individuals other than the applicant. However, I direct the HSE to re-examine the records in order to identify and release those parts of the withheld records that I have found above not to qualify for the section 37(1) exemption. I affirm the decision of the HSE that certain withheld information in the applicant's medical records is exempt from release under section 37(3) 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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

 

Elizabeth Dolan

Senior Investigator