Whether the HSE was justified in refusing access to medical records relating to the applicant-™s late wife under section 37(1) and 37(7) of the FOI Act.

28 March 2023

Background

In a request dated 26 May 2022, the applicant sought access to all medical notes and records held by the HSE from the period of July 2011 to July 2021, in respect of his late wife. In a decision dated 8 June 2022, the HSE refused access to the records under sections 37(1) and 37(7). It argued that the public interest in preserving the privacy of third parties outweighed the public interest, which would have been served by release of the records. The applicant via his solicitor, sought an internal review of the decision on 4 July 2022 stating that in circumstances where the third party referred to is deceased, it is neither possible or reasonable to request the consent referred to. He also argued that access should be granted pursuant to section 3(1)(b) of S.I 47 of 1999. On 8 July 2022, the HSE affirmed its decision to withhold access to the records concerned. The applicant applied to this Office for a review of the HSE-™s decision on 24 January 2023.

I have now completed my review iln accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the applicant-™s comments in his application for review and information provided by the HSE. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The review is concerned solely with whether the HSE was justified in its decision to refuse to release certain records, in whole or in part under sections 37(1) and 37(7) of the FOI Act.

Preliminary Matters

Section 22 (12)(b) of the FOI Act provides that when I review a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, the onus is on the HSE to satisfy me that its decision to refuse the request was justified.     

Analysis and Findings

Section 37

Section 37(1) of the FOI Act 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, including personal information relating to a deceased individual. 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).

In essence, this means that section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester. However, if that personal information is inextricably linked to personal information relating to parties other than the applicant, then section 37(1) applies.

Section 37(8) provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform ("the Minister") may make regulations for the grant of an FOI request in certain circumstances where the requester is the next of kin of the individual to whom the record relates or where the individual to whom the information relates is dead. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016).

Given the sensitivity of matters relating to this appeal, I am constrained by the level of detail which I can give. However, I can say that during the course of my review, it became clear that the HSE had not reviewed the records or received the relevant file from the GP. The HSE bears the responsibility of reviewing the records and deciding whether they are exempt or not based on their contents. As such, the HSE have not been in a position to consider the 2016 regulations around access to records concerning deceased persons. It is incumbent on the HSE to consider the regulations under section 37(8) and to make a decision on the public interest in matters such as these. In these circumstances, I consider that the most appropriate course of action is to simply annul the decision. I direct the HSE to consider the applicant-™s request again and to make a new, first instance, decision in accordance with the provisions of the FOI Act, including having regard to section 37(8) and the 2016 Regulations.

For the benefit of the parties involved, I note that the Central Policy Unit of the Department of Public Expenditure and Reform has published guidance on the application of S.I. 218 of 2016, available at https://foi.gov.ie/download/cpu-notice-25-access-to-records-relating-to-deceased-persons-prepared-under-section-378-of-the-freedom-of-information-act-2014/. 

It is also important to note that the mere fact of a requester being the next of kin does not mean that the requester is automatically entitled to access the records of their late spouse. As I have outlined above, the Regulations stipulate that the request shall be granted where in the opinion of the head, 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.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE-™s decision. I direct it to undertake a fresh decision making process in respect of the applicant-™s request.

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.  

Rachael Lord
Investigator