Whether the HSE was justified in redacting, under section 37(1) of the FOI Act, certain information from the applicant-�s medical records

17 November 2022

Background

In a request to the HSE dated 1 February 2022 the applicant said he attended Mercy University Hospital on 22 January 2022 and that previous to that, he was assessed by a doctor in Mayfield Garda station. He requested both the Garda and hospital files in relation to his admittance.

In a decision dated 8 February 2022 the HSE part granted the request, redacting certain information relating to third parties from the 57 pages of records it held, under section 37(1) of the Act. On 12 May 2022, the applicant sought an internal review of that decision, requesting that his full medical notes be released to him. He also sought the admission request made by An Garda Síochána (AGS) medical team and the discharge summary by the consultant at Mercy Hospital. On 31 May 2022, the HSE affirmed its original decision. On 27 June 2022, the applicant applied to this Office for a review of the HSE-�s decision.

During the course of the review, the Investigating Officer asked the HSE to comment on the applicant-�s specific request for access to the admission request and the discharge summary. In response, the HSE said both records were released in part to the applicant. The Investigating Officer sought the HSE-�s comments on the applicant-�s request for records relating to the assessment of the applicant by a doctor at Mayfield Garda Station. The HSE said that the report sought was not in the applicant-�s file. It said no reports prepared by AGS or at the Garda Station are transferred or copied to the HSE.

The HSE also released further information that it had originally redacted from pages 33, 35, 47 and 54 of the records. The HSE maintained its position in relation to the remaining part of page 47 and the rest of the redacted information that it refused under section 37(1) of the Act. Following the release of that additional information, the Investigating Officer invited the applicant to make further submissions on the matter. The applicant did not provide any further comments or submissions.

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 submissions made by the HSE in support of its decision as well as the applicant-�s comments in his application for review. 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

Having regard to the clarifications provided by the HSE in respect of certain specified records sought, this review is concerned solely with whether the HSE was justified, under section 37 of the FOI Act, in its decision to refuse access, in whole or in part, to pages 32, 38, 47, 52 and 55 of the records at issue.

Analysis and Findings

The HSE redacted a small amount of information from the records at issue under section 37 of the FOI Act. 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. The section does not apply where the information involved relates solely to the requester (subsection (2)(a) refers). However, section 37(7) provides that, notwithstanding subsection (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). In essence, this means that while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, if that personal information is inextricably linked to personal information relating to parties other than the applicant, then section 37(1) applies. It is also important to note that the fact the applicant may be aware of the identity of the other parties does not mean that the information cannot be protected under section 37(1). The release of a record under the FOI Act must be regarded, in essence, as release to the world at large as the Act places no constraints on the uses to which information released under the Act may be put.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Having examined the information that was redacted from the records, I am satisfied that it comprises joint personal information relating to the applicant and other third parties and that the information relating to the applicant is inextricably linked to the personal information of those third parties. I find that section 37(1) applies.

There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does 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) 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 in this case would not be to the benefit of the individuals to whom the information relates and that section 37(5)(b) does not apply.

In relation to the applicability of section 37(5)(a), 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 eNet Case-�), 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 Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26. It is noted that a true public interest should be distinguished from a private interest.

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.

It seems to me that in this case, the HSE sought to release as much information as it could to the applicant whilst also seeking to protect the privacy rights of the third parties concerned. Having examined the redacted information at issue, I have not been able to identify any sufficiently specific, cogent and fact-based reason for finding that the public interest in granting access to the information outweighs the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

In conclusion, therefore, I find that the HSE was justified in redacting, under section 37(1) of the Act, certain information from the applicant-�s medical records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE-�s decision to redact, under section 37(1) of the FOI Act, certain information from the applicant-�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