Whether the HSE was justified in refusing access to the applicant’s late mother’s medical records on the basis of section 35(1)(a) and 37 of the FOI Act. 

 

OIC-112487-Y9H2R4

 

Background

 

In a request dated 17 January 2021, the applicant sought access to the medical records of his late mother’s care at a specified HSE hospital from 1995 to 2003.  In a decision dated 4 May 2021, the HSE granted access to small amounts of information relating to the applicant and refused access to the remainder of the records on the basis that section 37 of the FOI Act applied.  The applicant sought an internal review of that decision, following which the HSE affirmed its decision to withhold the majority of the records. In doing so, it said it was also relying on section 35 of the Act to refuse access and that it found that the Regulations that provide for the right to access to the records of deceased persons by certain categories of requester did not apply in the circumstances. On 6 September 2021, the applicant sought a review by this Office of the HSE’s decision. 

 

During the course of the review, the HSE accepted that there were further very small amounts of information relating to the applicant and this information has been released to him.   

 

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 correspondence between the HSE and the applicant as outlined above and to the communications between this Office and both the HSE and the applicant on the matter. I have also had regard to the contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision.

 

 

Scope of Review

 

This review is concerned solely with the question of whether the HSE was justified, under sections 35 and 37 of the Act, in refusing the applicant’s request for access to his late mother’s medical records. 

 

 

Analysis and Findings

 

The records at issue comprise the medical records of the applicant’s late mother, to which access has been refused under section 35(1)(a) and 37 of the FOI Act. I consider section 37 of the Act to be of most relevance in this case and will address it first. 

 

Section 37

Section 37(1) provides that an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester, including personal information relating to a deceased individual.  Furthermore, section 37(7) provides that 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 referred to as joint personal information.

 

The 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 definition also contains a list of 14 specific types of information that is personal information, without prejudice to the foregoing definition, including information relating to the educational, medical, psychiatric or psychological history of the individual.  I find that the release of the records at issue in this case would involve the disclosure of personal information relating to the applicant’s late mother and that section 37(1) applies.

 

Section 37(2)

There are some circumstances, provided for at section 37(2), in which the exemptions at section 37(1) do not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of their information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I find that section 37(2) does not apply to the withheld information.

 

Section 37(5)

Having found that section 37(1) applies to the withheld information, I must also consider section 37(5). That section provides that a request which would fall to be refused under section 37(1) may still be granted where the FOI body considers that, on balance, (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual concerned.

 

I see no basis for finding that the grant of the request would benefit the individual to whom the information relates.  I am satisfied that section 37(5)(b) does not apply in this case.  

 

In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that 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. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”.

 

Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave 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 Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. 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.

 

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. Moreover, unlike other public interest tests provided for in the FOI Act, there is 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.

 

In considering where the balance of the public interest lies in this case, it is important to note that the release of records under FOI is regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act may be put. I have also had regard to the fact that the information in this case is of an inherently private and sensitive nature.  In the circumstances, I find no relevant public interest in granting access to the record that, on balance, outweighs the public interest in upholding the right to privacy of the individual to whom the records relate.  I find that section 37(5)(a) does not apply in this case.

 

Section 37(8)

Section 37(8) provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform may provide by regulations for the grant of a request where “the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations”. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016, as amended (the 2016 Regulations). The 2016 Regulations provide for the grant of access to the records of a deceased individual where the requester is the spouse or the next of kin of the individual and 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 the request. The Minister for Public Expenditure and Reform has published guidance on the application of the 2016 Regulations (“Minister’s Guidance”), in accordance with section 48(1) of the FOI Act. Section 48(3) of the FOI Act requires FOI bodies to have regard to guidelines published by the Minister in the performance of their functions.

  

I note that the 2016 Regulations state 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 (No.27 of 1965). The Minister’s Guidance says “In order to establish his or her 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.” 

 

In its internal review decision, the HSE said that it had considered section 37(8) and found “that it does not apply to the applicant in the circumstances”, and that the next of kin noted in the records is an individual other than the applicant. In its submission to this Office, the HSE said it considered the provisions of the 2016 Regulations in dealing with the request. It is not clear from the internal review decision, nor from the HSE’s submission to this Office, as to why it deemed that section 37(8) did not apply in the circumstances. I would note that the question of whether or not an individual is the next of kin for the purposes of the 2016 Regulations must be determined by the provisions of the 2016 Regulations and not by who is noted in the medical records of a deceased person as the next of kin.

 

In his application to this Office, the applicant states that he is the last survivor of his late mother.  In effect, the applicant’s position is that he is the next of kin for the purposes of the 2016 Regulations. It appears that the applicant provided copies of his birth certificate and other documentation in support of that position. It seems to me, on the basis of the information available to me, that the applicant has shown that he is the next of kin of the deceased. 

 

I must emphasise that the fact that the applicant is the next of kin of the deceased individual concerned does not mean that he is automatically entitled to access any of the records. On the basis that the applicant is, indeed, the next of kin of the deceased, the question I must consider is whether, 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. 

 

The Minister’s Guidance states that it is a matter for the decision maker to make such enquiries and engage in such consultation as is necessary to allow him or her to decide if the public interest would be better served by granting than by refusing the request. It suggests that certain factors should be taken into consideration when deciding if release is appropriate to the spouse or next of kin of the deceased, including:
 

• the confidentiality of personal information as set out in section 37(1)
• 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
• whether the requester can obtain the information they seek without accessing the records of the deceased
• any other relevant circumstances that the requester may set out.

Furthermore, in considering the nature and confidentiality of records to be released, the Minister’s Guidance states that if the record is inherently private and of a very sensitive nature, then there must be compelling reasons for its release. In relation to medical records in particular, it states that due regard should be had to the confidentiality of medical records in accordance with the relevant Irish Medical Council guidance (currently the Guide to Professional Conduct and Ethics for Registered Medical Practitioners - 8th edition published May 2016 (the Medical Council Guide)).  The Medical Council Guide states that patient information remains confidential even after death and suggests that, if unclear whether the patient consented to disclosure of information after their death, it should be considered how disclosure of the information might benefit or cause distress to the deceased family or carers, along with the effect of disclosure on the reputation of the deceased and the purpose of the disclosure. 

It is apparent from the 2016 Regulations, which refer to “all the circumstances” and from the factors specified in the Guidance published by the Minister, that such circumstances and matters, where relevant, cannot be excluded solely on the basis that they are not public interest factors.  

 

While I am cognisant of the requirements of section 25(3) that I take all reasonable precautions during the course of a review to prevent disclosure of exempt information, I can say that the HSE said it took the following into consideration in its decision to refuse the information at issue:

 

• the confidentiality of personal information withheld
• whether the deceased would have consented to the release of the information to the requester when living
• whether the deceased outlined in writing her consent to release of personal records
• 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 information to be released
   

It is the HSE’s position that the information at issue was given in confidence by the deceased.  The HSE is also of the view that it has no information that would indicate that the deceased would have been happy for her medical records to be released to the requester, nor is there any indication of consent for such release. Having reviewed the medical records at issue, I am satisfied that their contents support the HSE’s view.

Having carefully considered the provisions of the 2016 Regulations, the factors identified in the Minister’s Guidance, the submissions from both the applicant and the HSE, and the content and nature of the records, I am satisfied that in all the circumstances of this particular case, the public interest, including the public interest in the confidentiality of personal information, would on balance not be better served by granting than by refusing access to the information at issue. Unfortunately, I believe I am prohibited by section 25(3) from providing a more detailed explanation of my findings.

 

In conclusion, therefore, I find that the HSE was justified in refusing the applicant’s request for his late mother’s medical records under section 37(1) of the FOI Act. Having found section 37 to apply, I do not consider it necessary to consider section 35 in this case.

 

 

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, under section 37(1), the applicant’s request for access to his late mother’s medical records.    

 

 

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