Whether the HSE was justified in refusing access to certain information contained in the applicant’s medical records under section 37 of the FOI Act on the ground that the withheld information comprises personal information of other individuals

 

OIC-108955-Z6Z7G2

 

Background

 

In a request dated 13 January 2020, the applicant sought access to her medical records for a period beginning in 1990 that are held by a named hospital. Initially, the HSE refused the applicant’s request under section 15(1)(a) of the FOI Act on the basis that the records sought could not be located. The applicant sought a review by this Office of that decision. On 30 November 2020, I remitted the matter back to the HSE for a fresh decision as the HSE located the records in question during the course of that review.

 

In its fresh decision dated 11 December 2020, the HSE part-granted the request, refusing access to some of the information contained in the records under sections 35(1)(a) and 37 of the Act. In her application for an internal review of the decision to redact certain information, the applicant also noted the poor quality of some of the records she received. Following internal review, the HSE affirmed its decision under sections 35 and 37 of the Act and provided the applicant with an improved copies of a number of the records. It was unable to provide a better copy of some records. It explained that the applicant’s request related to the period from 1999 to 2002. It said that the applicant’s hard copy medical records were destroyed following the transfer of the records to microfiche. It explained that the quality of some of the images on microfiche varies from page to page due to the images taken at the time. On 14 June 2021, the applicant sought a review by this Office of the HSE’s decision.

 

I have now completed my review in this case. I have decided to bring the case to a close by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between the applicant and the HSE as outlined above and to communications between this Office and both the applicant and the HSE on the matter. I have also had regard to the content of the records at issue. In referring to the records at issue, I have adopted the numbering system used by the HSE when processing the request.

 

 

Scope of the Review

 

This review is concerned solely with whether the HSE was justified in redacting information from the applicant’s medical records under sections 35 and 37 of the Act.

 

During the course of this review the HSE informed this Office that the Haematology/Biochemistry Results on pages 15-25 in the Schedule of Records were incorrectly recorded as being part refused. It said that these pages were released in full.

 

 

Preliminary Matters

 

Before I address the substantive issues arising, I would like to make some preliminary points.

 

In her application to this Office, the applicant outlined why she needs access to medical records and indicated, among other things, that she intends to send her records to the Medical Council. It is important to note that section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. This means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the records where the Act requires a consideration of the public interest. Nevertheless, the applicant may care to note that the HSE stated in its submissions to this Office that if the Medical Council require the records from the HSE, it has sufficient authority in legislation to access the unredacted records.

 

Secondly, section 18(1) of the Act provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the FOI body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

 

Finally, section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record. As a consequence, the descriptions I can give of the information that has been withheld or the reasons for my findings in this case are necessarily limited.

 

 

Analysis and Findings

 

Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition, to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).

 

Section 2 of the FOI Act defines the term “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. The Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including “(xiv) the views or opinions of another person about the individual”. Certain information is excluded from the definition of personal information, including the names of staff of FOI bodies or anything written or recorded by the staff of FOI bodies in the performance of their functions. This exclusion also applies to certain information relating to services provided on behalf of FOI bodies. Having regard to the particular contents of the records and information at issue, I am satisfied that the exclusions to personal information do not apply in this case.

 

Having examined the withheld information at issue, I am satisfied that it comprises either personal information relating solely to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to personal information relating to other identifiable individuals, i.e. joint personal information. I am satisfied that the release of the redacted information would involve the disclosure of personal information relating to individuals other than the applicant. It may well be the case that a considerable amount of the withheld information is generally known to the applicant, for example the names of family members and other individuals referred to in the records. Nevertheless, I must consider that when a record is released under the FOI Act, this, in effect, amounts to disclosure to “the world at large”, as the FOI Act places no restriction on the subsequent uses to which the record may be put. Accordingly, I am satisfied that section 37(1) applies to the information redacted by the HSE in this case.

 

However, that is not the end of the matter, as subsection (1) is subject to a number of other subsections. There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. The applicant argues that the information redacted by the HSE should be released as it is necessary to avoid a serious and imminent danger to the life or health of an individual (section 37(2)(e) refers).

 

The test to be met in section 37(2)(e) is a high one. The risk to life or health must be serious and must be imminent. This means that the degree of danger must be grave and the danger must be impending or close at hand. It must also be shown that disclosure of the information at issue is required in order to avoid such harm. A clear link must therefore be established showing that disclosure of the information is necessary for such purposes. This Office does not consider the requirements of the provision to be met where disclosure would merely be of assistance to an individual or an individual's mental health, for example, by providing an understanding or knowledge of an issue which is of great concern to them.

 

Having regard to the applicant’s submission, I am not satisfied that section 37(2)(e) applies in this case. I am also satisfied that none of the other circumstances set out in section 37(2) arise.

 

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 find that section 37(5)(b) does not apply in this case. As to whether section 37(5)(a) applies, the question I must consider is whether the public interest in releasing the information redacted by the HSE outweighs, on balance, the public interest in protecting the privacy rights of the third party individuals to whom the information relates.

 

In considering where the balance of the public interest lies, I have had 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] 1 IR 729, [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.

 

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

 

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

 

Both 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). Unlike other public interest tests provided for in the FOI Act, there is also 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.

 

It seems to me that by granting access to the majority of the information contained in the records at issue, the HSE has sought to strike a balance of providing the applicant with access to her medical records while seeking to protect the privacy rights of third parties. It is also important to note that the release of records under FOI is, in effect, regarded to release to the world at large, given that the FOI Act places no constraints on the uses to which the information contained in those records may be put.

 

Having carefully considered the matter, and given the strong public interest in protecting the right to privacy, I find no relevant public interest in granting access to the withheld information that, on balance, outweighs the right to privacy of the third parties in this case.

 

In conclusion, therefore, I find that the HSE was justified in its decision to refuse access to personal information of other parties contained in the records at issue in this case under section 37(1) of the Act. Having found that section 37(1) applies, I do not need to consider the applicability of section 35(1)(a) 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 HSE to refuse access to third party personal information contained in the records under section 37(1) of the 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.

 

 

 

Stephen Rafferty

Senior Investigator