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Whether the HSE was justified in its decision to refuse to grant access to medical and other records sought by the applicant, relating to his deceased father, on the basis that he was not considered to be the deceased person's next of kin

Conducted in accordance with section 34(2) of the FOI Act by the Information Commissioner

Background

On 10 December 2012, the applicant submitted a request to the HSE for access to records relating to his deceased father. On 2 September 2013, the applicant swore an affidavit in support of his application, setting out his relationship to the deceased. This affidavit was received by the HSE on 3 September 2013. The HSE's decision issued on 19 December 2013. The applicant's request was refused, on the basis that he is "not the [deceased person's] immediate next of kin".

The applicant sought an internal review of this decision by way of letter dated 29 April 2014. The HSE's internal reviewer issued her decision on 20 May 2014, upholding the initial decision. On 19 November 2014, the applicant sought a review by my Office of HSE's decision.

I note that, in correspondence with the HSE, Mr Niall Mulligan of my Office set out his view in relation to the case and offered it a further opportunity to make submissions. The HSE has not furnished any further submission or correspondence. I therefore consider that the 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 HSE's decision on the matter and its communications with my Office, as well as the applicant's communications with the HSE. I have also had regard to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

This review is concerned solely with the question of whether the HSE was justified in refusing the applicant's request for records relating to his deceased father, on the basis that he is not the next of kin for the purposes of the FOI Act.

Analysis and Findings

Section 28(6) of the FOI Act provides, insofar as relevant, that:-

... the Minister may provide by regulations for the grant of a request under section 7 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.

The relevant regulations are the Freedom of Information Act 1997 (Section 28(6)) Regulations 2009 (S.I. No. 387/2009), which provides at article 4(1) that:-

Notwithstanding section 28(1), a request under section 7 in relation to a record access to which involves the disclosure of personal information (including personal information relating to a deceased individual) shall, subject to the other provisions of the Freedom of Information Act, 1997 , be granted where:

(b) the individual to whom the record concerned relates is dead ("the individual") and the requester concerned belongs to one of the following classes of requester...

(iii) the spouse or the next of kin of the individual where in the opinion of the head, having regard to all the circumstances and to any relevant guidelines published by the Minister, 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.

... "next of kin" is the person or persons standing nearest in blood relationship to the individual in accordance with section 71(2) of the Succession Act, 1965.

Having had regard to 71(2) of the Succession Act, 1965 and to the content of the applicant's affidavit, sworn in support of his request, it would appear on its face that the applicant is the deceased person's next of kin for the purposes of the Regulations.

It also appears from the applicant's affidavit that the deceased person's spouse was alive at the time of swearing. The HSE refused the applicant's request on the basis that the deceased person's spouse took priority over the applicant. The question I must consider is whether article 4(1)(b)(iii) of the Regulations provides a potential right of access to either the spouse or the next of kin, or whether it provides for a potential right of access to both types of requester. In other words, is a potential right of access afforded to the next of kin only where there is no surviving spouse? In my view there is nothing in the Regulations to suggest this to be the case. While it might be argued that the Regulations were intended to provide potential access rights to only one particular type of individual having regard to the rules for the distribution of a deceased's estate as set out in the Succession Act 1965, it seems to me that this is not what is actually provided for. In my view, the Regulations clearly state that "the spouse or the next of kin" may be entitled to access, subject to the various conditions set out in article 4(1)(b)(iii) of the Regulations. In other words, both the spouse and the next of kin have a potential right of access under article 4(1)(b)(iii).

Accordingly, I find that the HSE was not justified in refusing the applicant's request on the basis that he is not the deceased person's next of kin.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby annul the HSE's decision. I direct that the HSE undertake a fresh decision making process on the basis that the applicant belongs to a class of individual outlined in article 4(1)(b)(iii) of the Freedom of Information Act 1997 (Section 28(6)) Regulations 2009.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Peter Tyndall
Information Commissioner