Whether the HSE was justified in refusing access to the applicant-�s parents-� medical records, including any information in the records that relates to him

20 February 2020

Background

In a request dated 31 May 2019, the applicant sought access to his parents-� medical records. He said that, in particular, he wanted to find out what information is held about him on those records.

The HSE wrote to the applicant on 6 August 2019 saying that it did not consider it appropriate to process his FOI request because it was awaiting medical assessment reports relevant to wardship applications that were being undertaken. The FOI Act does not provide for a request not to be processed, or for a request to be refused, on this basis. However, I am satisfied that the HSE-�s letter essentially amounts to a deemed refusal of the applicant-�s request.

On 9 August 2019, the applicant sought an internal review of that deemed decision. The HSE-�s internal review decision of 30 August 2019 refused access to records except for two Common Summary Assessment Reports relating to the applicant-�s parents, which it released in part.  It relied on sections 37(1) (third party personal information) and 37(7) (joint personal information) of the FOI Act in refusing to release the records and parts of records concerned. On 9 September 2019, the applicant applied to this Office for a review of the HSE-�s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to above exchanges and correspondence between this Office, the HSE and the applicant. I have also had regard to the contents of the records concerned and to the provisions of the FOI Act. I am making separate decisions on the applicant-�s other applications for review arising from several different FOI requests.

Scope of the Review

The scope of this review is whether the HSE-�s decision on the applicant-�s request was justified under the provisions of the FOI Act. I note that the applicant has set out various questions to which he would like answers on matters that are obviously of great concern to him. While this review cannot be broadened to consider any records that were not sought in the original request, it may be useful for the applicant to be aware of the limitations of the FOI Act in situations such as he describes. I note that this Office is dealing with a separate application from the applicant under section 10 of the Act in relation to the provision of a statement of reasons. The FOI Act does not generally provide a mechanism for answering questions except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought.

Findings

Personal information - section 37

It is useful at this point to outline the Commissioner-�s approach to granting partial access to records. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).

The HSE has in this case gone to considerable effort to grant access to parts of some records covered by the applicant-�s request, which I accept is in the spirit of the FOI Act. However, the Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.

Section 25(3) requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions. This means that I am limited in the level of detail I can give in describing the withheld records and parts of records. It is also relevant that the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Section 37(1)

Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information.

The applicant-�s arguments are lengthy and relate to all of his applications to this Office. While I do not intend to repeat his arguments in full, I confirm that I have had regard to them in making my decision. He explains why he made his FOI request and how he has cared for and advocated on his parents-� behalf, including since they were admitted to a nursing home. He says that he accompanied his parents to doctors-� appointments and is already familiar with the details of their medical records, which he could publish to the world at large. He says that he and his parents should be seen as an inseparable unit and that he was their next of kin and chaperone. I will summarise the rest of his arguments when considering the public interest test in this case.

The above arguments do not mean that the applicant has an entitlement to the records under the FOI Act. Furthermore, the FOI Act requires me when making my decision not to take the applicant-�s reasons for making his request into account.

Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual and (xiv) the views or opinions of another person about the individual. Having examined the withheld details, I am satisfied that I am not in breach of section 25(3) by explaining that they relate largely to the applicant-�s parents and also to other identifiable individuals including the applicant. I am also satisfied that the details meet both definitions in section 2, in addition to being captured by the above examples of what comprises personal information.

Section 37(7) provides that, notwithstanding section 37(2)(a), a record shall be refused where access to it 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.

The records contain information relating to the applicant that is inextricably linked to that of other individuals (joint personal information). Even if it were feasible to separate out information relating solely to the applicant, I would not consider it to be in keeping with the Commissioner-�s approach to section 18 to grant access to the records in this case with such third party personal information redacted.

I find that the withheld records and parts of records are exempt under section 37(1) of the FOI Act. This is subject to the consideration of sections 37(2) and (5), however. TO HERE

Section 37(2) - exceptions to section 37(1)

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. Section 37(2)(a) provides for the grant of access to personal information relating to the requester. As outlined above, I do not consider that personal information relating to the applicant as it appears in the records can be separated from that of other individuals. I am satisfied that section 37(2)(a) does not apply in this case. Based on the totality of his arguments, the applicant may be taken as saying that section 37(2)(e) applies in this case, which provides for the grant of access to personal information where disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual. It is clear that the HSE does not consider this to be the case, however, and I do not consider that the applicant-�s assertions as detailed below provide me with a valid basis for finding otherwise. I am satisfied that section 37(2)(e) does not apply in this case and I am also satisfied that the remaining circumstances set out in section 37(2) do not arise.

Section 37(5)

The applicant says that release of the records would benefit rather than harm his parents-� interests. I take it that he is arguing that section 37(5)(b) applies, which provides that a request that would fall to be refused under section 37(1) may still be granted where the grant of the request would benefit the individuals to whom the records relate. Again, the HSE does not consider this to be the case and I do not consider that the applicant-�s assertions as set out below, as to why the records would benefit his parents, provide me with a valid basis for directing the HSE to release the records under section 37(5)(b) of the FOI Act.

Section 37(5)(a) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.

On the matter of where the public interest lies, I have had 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] 1 IR 729, [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. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to the consideration of public interest tests generally.

Furthermore, McDermott J., in his December 2016 judgment in the case of F.P. and the Information Commissioner [2014 No. 114 MCA] ("the F.P. case") which was subsequently upheld by the Court of Appeal, said that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that "the -�public interest-� in granting access is not to be determined on the basis of the appellant-�s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.-�

The applicant says that he is deserving of the requested information given the care he has given to his parents over the years. He says that the HSE forced members of his family into placing his parents in a nursing home. He says that the details in the records may not be accurate. He gives examples of his own medical records which he says were confirmed to contain an error and which he says refer to comments made by him that are recorded inaccurately. He says that the records will show what good care he was taking of his parents when they were in his care and how much their health has deteriorated since being placed in the nursing home. He says that entries may be missing from his parents-� notes and gives examples in this regard. He explains why he has suspicions about entries made in his parents-� notes and other records such as referral letters. He also says that the records should be released so that they -�may be set straight-�. He says that the HSE is not generally in favour of open disclosure, in which regard he refers to the CervicalCheck controversy. He says that this Office should have regard to the possibility that the HSE acted wrongly in placing his parents in a nursing home, that its records are inaccurate and that as a result his parents-� health has deteriorated. He says that the money contributed by the State to keeping his parents in a nursing home, when they could be in his care, could be spent elsewhere and therefore that the inaccuracies he says are in the records have also adversely affected the public health.

While I can appreciate why it is so important to the applicant to obtain access to the records, the Court judgments referred to above make it clear that I cannot take into account his private interests (including any he may have in seeking to have records amended under the FOI Act) in the grant of access to the withheld information. It is not appropriate for me to direct the release in the public interest of third party personal information, effectively to the world at large, on the basis of the applicant-�s views regarding the HSE in general. Neither is it appropriate to direct such release on the basis of the applicant-�s assertions regarding the appropriateness of the HSE-�s decisions concerning his parents. As the Commissioner said in his composite decision in cases  090261/090262/090263 which the High Court and Court of Appeal upheld in the FP case: "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."

I agree that there is a public interest, which is recognised by the FOI Act, in establishing that the HSE carried out its functions, including those in relation to the applicant, in a way that was consistent with the principles of natural and constitutional justice. This public interest is entitled to significant weight in this case and I accept that it would be served by granting access to the withheld records and parts of records.

On the other hand, both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Having regard to the very sensitive nature of the withheld information, I am satisfied that placing it in the public domain would significantly breach the rights to privacy of identifiable individuals other than the applicant.

Having considered the matter carefully, I find that the public interest in favour of granting access to the withheld records and parts of records does not outweigh the public interest that the right to privacy of individuals other than the applicant should be upheld.

Section 37(8) of the FOI Act

Although it is not referred to in the HSE-�s internal review decision, the HSE confirms that it considered whether the applicant was entitled to access to those parts of the records that relate to his parents and/or to his parents and himself under Regulations made under section 37(8) of the FOI Act. The relevant provisions are Regulations 5(b) and 6 of Statutory Instrument (S.I.) No. 218 of 2016 (http://www.irishstatutebook.ie/eli/2016/si/218/made/en/print), which provide for the grant of access to a parent or guardian of records relating to persons who are incapable of exercising their rights under the FOI Act and where this is in the best interests of the incapacitated person(s).

I do not consider that I may treat next of kin as guardians for the purposes of S.I. No. 218 of 2016. The applicant is not a committee in a wardship context. I accept the HSE-�s position that the applicant is not his parents-� guardian. I find that the applicant is not entitled to the relevant parts of the records further to the provisions of section 37(8) of the FOI Act. In such circumstances, it is not necessary for me to consider the HSE-�s position that, in any event, it is not in the best interests of the applicant-�s parents for information to be released further to the provisions of S.I. No. 218 of 2016.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE-�s refusal to fully grant the applicant-�s request 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.

Elizabeth Dolan

Senior Investigator