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Case Number: 160350

Whether the HSE was justified in its decision to refuse access to records relating to the applicant's deceased mother, under sections 35(1)(a) and 37(1) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 19 November 2015, the applicant requested "all of my late mother's files under the Freedom of Information Act". On 26 January 2016, the HSE granted access to certain documentation but refused access to the remaining records. In refusing access, the decision-maker did not expressly refer to a provision of the FOI Act, instead referring to the right to privacy of the applicant's deceased mother. On 12 February 2016, the applicant sought an internal review of the HSE's decision. On 21 March 2016, the HSE affirmed its original decision, under sections 35(1)(a) and 37(1) and (5) of the FOI Act. On 23 August 2016, the applicant applied to this Office for a review of the HSE's decision.

In conducting this review, I have had regard to the HSE's decision; the HSE's communications with the applicant and with this Office; the applicant's communications with the HSE and with this Office; the content of the withheld records, provided to this Office by the HSE for the purposes of this review and to the provisions of the FOI Act.

Scope of Review

This review is concerned with whether the HSE was justified in refusing access to the withheld records under the FOI Act. A significant number of these records pre-date the commencement of the FOI Act. They nevertheless fall to be considered, as there may exist a right of access to them if section 37(8) of the FOI Act applies (see below), by virtue of the Freedom of Information Act, 1997 (section 6(4)(B)) Regulations 1999 S.I. No. 46 of 1999 (the 1999 Regulations). The 1999 Regulations effectively provide that requesters who have a right of access to records of deceased people under the FOI Act may access records created prior to the commencement 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 is justified.

Analysis and Findings

The HSE refused the applicant's request on the basis that the records were exempt under section 35(1)(a) of the FOI Act (confidentiality) and sections 37(1) and (5) of the FOI Act (personal information). Its internal review decision letter states: "I have reviewed the files relevant to your request, examined them within the FOI Act 2014 and the regulations regarding access to records relating to deceased persons". I take it that the regulations referred to are the Freedom of Information Act, 1997 (Section 28(6)) Regulations, 2009 S.I. No. 387 of 2009 (2009 Regulations).

Section 37(8) provides that the Minister may provide by regulations for the grant of an FOI request, where the individual to whom the record concerned is deceased. The applicant's FOI request was made before the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 commenced. Therefore in accordance with certain transitional provisions, the 2009 Regulations apply. Article 4(1) of these regulations provide, insofar as is relevant:

"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:

(i) a personal representative of the individual acting in due course of administration of his or her estate or any person acting with the consent of a personal representative so acting,

(ii) 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, and

(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."

As noted above, the internal review decision refers to "the regulations regarding access to records relating to deceased persons". However, there is no evidence before me that the HSE gave proper consideration to section 37(8) or the 2009 Regulations in its original or internal review decisions.

The internal review decision makes no further reference to the 2009 Regulations. It refers to the public interest test under section 37(5) of the FOI Act, rather than the very specific test set out at article 4(1)(b)(iii) of the 2009 Regulations. It is plain from the 2009 Regulations that the Oireachtas has determined that certain categories of requester shall be granted access to the records of deceased persons provided certain requirements are met. The requirements in the case of article 4(1)(b)(iii) are that the requester is the spouse or next of kin and that:

"...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." [my emphasis]

The internal review decision does not refer to the relevant factors for consideration when applying the 2009 Regulations, as set out in the relevant guidelines published by the Minister.
During this review, the investigator invited submissions from the HSE and in particular on regulations regarding access to records of deceased persons. This Office received no submissions in response.

It appears that the applicant may be seeking her deceased mother's records as next of kin, so that the request falls to be dealt with under article 4(b)(iii), as set out above. However, it is for the HSE to establish this and to apply the relevant legislation and guidelines, including the public interest in the confidentiality of personal information. I am satisfied that in the circumstances of this case, the HSE should have considered the 2009 Regulations.

As also noted above, the HSE claims that the records are exempt under section 35(1). In Case 100260 (Ms C c/o X Solicitors & the HSE), a previous Commissioner observed that if all clinical records were exempt from disclosure on the basis that their release would constitute a breach of confidence, the provisions of article 4 of the 2009 Regulations and section 28(6) of the Freedom of Information Acts 1997 - 2003 (now (37(8) of the FOI Act) would be redundant. I agree with this observation. Notwithstanding the fact that this matter concerns medical records, I consider that they fall to be considered under the 2009 Regulations, having regard to the requirements set out.

For completeness, I should mention that certain records may contain the personal information of identifiable individuals other than the applicant and her deceased mother. These should be considered under section 37(1) or (7) of the FOI Act, as relevant.

In the circumstances, I consider that the appropriate course of action is to annul the HSE's decision and direct it to undertake a fresh decision-making process, having due regard to the provisions of the 2009 Regulations.

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, having due regard to the provisions of the Freedom of Information Act, 1997 (Section 28(6)) Regulations, 2009 S.I. No. 387 of 2009.

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.

Elizabeth Dolan
Senior Investigator