Whether the HSE was justified in its decision to refuse the applicant's request for records relating to the care and treatment of his daughter

24 April 2018 

Background

On 21 March 2017 the applicant sought access to certain records relating to the care and treatment of his daughter. The HSE issued its decision in two parts. It refused access to the majority of the records sought relating to the applicant's daughter. The applicant sought an internal review of the decision, on which the HSE issued its internal review decision, again in two parts. It refused access to a large number of records under sections 30, 31, 35 and 37 of the FOI Act. On 27 September 2017, the applicant sought a review by this Office of the HSE's decision.    

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of HSE, and to the contents of the records at issue, copies of which were provided to this Office for the purpose of conducting the review, and to the provisions of the FOI Act. I have decided to conclude the review by making a formal, binding decision on the matter.

Scope of Review

This review is concerned solely with the question of whether the HSE was justified in refusing access to the records sought relating to the care and treatment of the applicant's daughter.

Analysis and Findings

The HSE refused access to the records under sections 30, 31, 35 and 37 of the FOI Act. In my view, section 37 is of most relevance in this case.

Section 37 - Personal Information  

Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information of an individual other than the requester. The FOI 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 for the purposes of the Act, including information relating to the medical history of an individual. 

Section 37(8) of the FOI Act provides that, notwithstanding subsection (1), the relevant Minister may provide by regulations for the grant of a request where the individual to whom the records sought relate belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual. The Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016), as amended, are the relevant regulations in this case (the Regulations).

The Regulations provide that notwithstanding section 37(1), a request may be made for records which involves the disclosure of personal information and shall, subject to the other provisions of the FOI Act 2014, be granted if the requester is a parent or guardian of the individual to whom the record concerned relates and that individual has not attained full age at the date of the request.

As the applicant's daughter was a minor when the applicant submitted his request for records, the HSE was required to have regard to the Regulations when considering the request. However, the applicant's daughter has since turned 18 years of age, a matter which is relevant to this review. A review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision. As the applicant's daughter is now 18, I find that the provisions of section 37(8) are no longer relevant.

The records at issue relate to the care and treatment of the applicant's daughter. They include her medical records, records regarding arrangements for her care and treatment and records of correspondence between the applicant and the HSE relating to his daughter. While the HSE refused access to some records on the grounds of exemptions other than section 37 at the time of its decisions, I am satisfied that all of the records relate to the applicant's daughter and that their disclosure would involve the disclosure of personal information relating to her. I find, therefore, that section 37(1) applies to all of the records.

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 applicant's daughter has not consented to the release of information relating to her; (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.

I turn now to section 37(5) which also provides for exceptions to the section 37(1) exemption. I see no basis for finding that the grant of the request would benefit the individual to whom the information relates and I am satisfied that section 37(5)(b) does not apply in this case.

Section 37(5)(a) - Public Interest

Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates.  In relation to the issue of the public interest, it is 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 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

The applicant has strong concerns as to the manner in which the HSE cared for his daughter. Indeed, I note that he has made a complaint to the HSE on the matter. This Office has no role in the examination of the administrative processes of public bodies. However, the FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they carry out their functions. Indeed, the Act specifically requires public bodies, in performing any functions under the Act, to have regard to, among other things, the need to achieve greater openness in their activities, to promote adherence to the principle of transparency in government and public affairs, and the need to strengthen their accountability and to improve the quality of their decision making.

On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - in both in the language of section 37 and in 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. 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 is also important to note that with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put. In the circumstances, I consider it appropriate to regard any release of the records concerned as being effectively, or at least potentially, to the world at large. It is also important to state that the records contain information of an inherently private and sensitive nature relating to the applicant's daughter.

In the circumstances, I find that the public interest in granting the request does not, on balance, outweigh the public interest in protecting the privacy rights of the applicant's daughter and that section 37(5)(a) does not apply.

In conclusion therefore, I find that the HSE was justified in refusing access, in whole or in part, to the records at issue under section 37(1) of the FOI Act. Having found section 37(1) to apply, I do not consider it necessary to consider the other exemptions cited by the HSE.

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 access, in whole or in part, to records relating to the applicant's daughter under section 37(1) of the FOI Act.

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