Irish Information Commissioner's Decisions

Whether the HSE was justified in refusing, under section 37(1) of the FOI Act, the applicant-�s request for access to her late brother-�s medical records

OIC-110281-W6P6T6

Background

In a request dated 9 February 2021, the applicant sought access to medical records relating to her late brother from 15 December 2020 to the date of her request. She provided an affidavit in support of her request. In a response to the applicant dated 19 April 2021, the HSE refused the request on the ground that there appears to be a more immediate next of kin than those identified on the Affidavit she supplied. It did not cite any particular section of the Act upon which it based its refusal.

On 30 April 2021, the applicant sought an internal review of the HSE-�s decision, wherein she indicated that she had made her request as her late brother-�s next of kin. Amongst other things, she argued that her late brother-�s medical records show that her other brother was his next of kin, not his son. She said she had provided a letter from her other brother, who is the executor of her late brother-�s will, to confirm that she was acting on behalf of the family in requesting the records.

 On 24 June 2021, the HSE issued its internal review decision to the applicant, wherein it upheld its original decision. It said that as the deceased had a living son, the son was the immediate next of kin -�within the meaning of the Regulations-�. While it did not specify which -�Regulations-� it was referring to, it subsequently confirmed in its submissions to this Office that this was a reference to the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 as amended, hereinafter referred to as the 2016 Regulations.

On 14 July 2021, the applicant sought a review by this Office of the decision of the HSE in respect of her request.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the application for review and the submissions made by the HSE. I have also examined the records at issue. I have now decided to conclude the review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with whether the HSE was justified in refusing the applicant-�s request for access to the medical records of her deceased brother.

Preliminary Issues

It is important to note that, while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. This means that I am constrained in this case from providing a fuller explanation for my findings than that set out below.

Furthermore, section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse and 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.

Finally, I wish to point out that the HSE-�s decision letters fell well short of the requirements of the Act in this case. Pursuant to sections 13 and 21, the decision letters should have contained details of the provisions of the Act pursuant to which the request was refused, findings on material issues of relevance to the decision, and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision. I expect the HSE to take appropriate measures to ensure that all future decisions comply in full with the requirements of the Act.

Analysisand Findings

In its submissions to this Office, the HSE indicated that it was relying on section 37(1) of the FOI Act as a basis for its refusal to grant access to the records at issue. Section 37(1) of the Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record would involve the disclosure of personal information, including personal information relating to a deceased individual. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester. Under section 37(1), personal information cannot be released unless one of the other relevant provisions of section 37 applies.

Given the nature of the records at issue, I am satisfied that their release would involve the disclosure of personal information relating to an individual other than the applicant and that section 37(1) applies. However, that is not the end of the matter as subsection (1) is subject to the other provisions of section 37.

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. In particular, section 37(2) provides that subsection 1 does not apply where (a) the information sought relates to the requester concerned; (b) any individual to whom the information relates consents to its disclosure; (c) the information requested is available to the general public; (d) the information was given to the FOI body concerned by the individual to whom it relates and belongs to a class of information that would or might be made available to the general public; or (e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual. The HSE addressed the applicability of section 37(2) in its submissions, stating that none of the none of the circumstances set out in section 37(2) applied in this case. I concur with this analysis and am satisfied that none of the circumstances in section 37(2) applies in this case.

Section 37(5) of the FOI Act provides that a request that would fall to be refused under subsection (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 request would benefit the person to whom the information relates. Although the HSE did not address the applicability of section 37(5) in its submissions, the matter of the public interest in the disclosure of the information at issue still falls to be considered by this Office. In the first instance, I consider that in the particular circumstances of this case, section 37(5)(b) does not apply.

On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates.

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and -�there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure-�. Although the Court-�s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

In relation to the issue of the public interest, it is also important to have regard to the comments of the Supreme Court in The Governors and Guardians of the HSE 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 FOI Act recognises that there is a public interest in promoting openness and accountability of public bodies in the performance of their functions. On the other hand, however, the FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy).  It is also worth noting that the right to privacy 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.

It is important to note at this stage that the release of information under the FOI Act is, in effect, release to the world at large given that the Act imposes no constraints on the uses to which information released under FOI may be put. Therefore, while I can take account of the applicant-�s purported status as the next of kin of the deceased when considering the applicability of the 2016 Regulations (examined below), I cannot do so when considering the applicability of section 37(5)(a).

The information at issue in this case is of an inherently private nature. Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find that the public interest in granting access to the records does not, on balance, outweigh the right to privacy of the deceased. I find, therefore, that section 37(5)(a) does not apply.

Statutory Instrument 218/2016 (the 2016 Regulations)

Section 37(8) of the Act provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform may provide by regulations for the grant of an FOI request where:

-�(b) the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations-�.

It should be noted that such regulations have indeed been made, namely the above-mentioned 2016 Regulations. Among other things, they provide that notwithstanding section 37(1), a request may be made for records which involves the disclosure of personal information relating to a deceased individual and shall, subject to the other provisions of the FOI Act 2014, be granted, where:

-�(a) the requester concerned belongs to one or other of the following classes:

1. a personal representative of the individual acting in due course of administration of the individual-�s estate or any person acting with the consent of a personal representative so acting,
2. a person on whom a function is conferred by law in relation to the individual or his or her estate acting in the course of the performance of the function, or

(b) the requester is the spouse or the next of kin of the individual and, in the opinion of the head [of the relevant 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-�.

While I note that the applicant provided the HSE with a letter from her brother, the executor of her late brother-�s will, to confirm that she was acting on behalf of the family in requesting the records, she has not argued that she is seeking access to the records on the basis of belonging to one of the classes set out in (a) above. In any event, it is not apparent to me why access to the medical records of the deceased might be required for the purpose of the administration of his estate, nor has the applicant suggested this to be the case.

The class of requester identified in part (b) above is the spouse or the next of kin of the individual. Regulation 8 of the 2016 Regulations defines -�next of kin-� as follows:

1. issue,
2. parent,
3. brother or sister,
4. a niece or nephew, or,
5. any other person standing nearest in blood relationship to the individual in accordance with section 71(2) of the Succession Act 1965 (No.27 of 1965).

Regulation 9 provides that for the purposes of the definition of -�next of kin-� in Regulation 8, in a case in which two or more paragraphs of that definition would be applicable, the paragraph that, alphabetically, is the first in order shall alone be regarded as applicable. In other words, if the deceased has a surviving child, the child will be regarded asthenext of kin for the purposes of the Regulations, ahead of any other class.

In this case, the HSE noted that the deceased-�s medical records indicated that he had died leaving a son behind. The applicant-�s argument appears to be that the deceased did not nominate his son as his next of kin in his medical records and instead nominated his brother. The recording of an individual as next of kin in medical records for the purposes of providing an appropriate contact person does not qualify that individual as the next of kin for the purposes of the 2016 Regulations. Accordingly, I find that the HSE was correct in determining that the applicant is not the next of kin for the purpose of accessing her late brother-�s medical records pursuant to the 2016 Regulations.

In conclusion, therefore, I find that the 2016 Regulations do not provide a right of access to the records sought in this case and that the HSE was justified in refusing access, under section 37(1) of the Act, to the records sought.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE in this case. I find that the HSE was justified in its decision to refuse access to medical records belonging to the applicant-�s late brother 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 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.

Stephen Rafferty

Senior Investigator