X&Y c/o ABC Solicitors and Health Service Executive

CourtInformation Commission
JudgeSenior Investigator
Judgment Date06 Apr 2021
Case OutcomeThe Senior Investigator affirmed the decision of the HSE.
Record NumberOIC-102154-Y0Q2G5
RespondentHealth Service Executive
Whether the HSE was justified in refusing access to the medical records of a deceased individual under section 37(1) of the FOI Act

6 April 2021

Background

In a request dated 7 September 2019, the applicants, through their legal representatives, sought access to the medical records of a deceased individual. The deceased individual had been a neighbour of the applicants prior to her death. The correspondence indicated that the applicants were the personal representatives of the deceased individual and that access to the medical records was required to prove the will of the deceased so that the estate of the individual could be distributed.

In a decision dated 2 March 2020 the HSE refused the request on the ground that the applicants were not entitled to access the records under the Regulations made by the Minister for Public Expenditure and Reform under section 37(8) of the FOI Act which provide for access by certain third parties to records of a deceased individual. On 7 September 2020, the applicants sought an internal review of that decision, following which the HSE affirmed the original decision. On 7 January 2021, the applicants sought a review by this Office of the HSE’s decision.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to correspondence between the applicant and the HSE, to the correspondence between this Office and both the applicant and the HSE on the matter, and to the contents of the records at issue.

Scope of the Review

This review is concerned solely with the question of whether the HSE was justified in refusing the applicants' request for access to the medical records of a deceased individual.

Analysis and Findings

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. The records at issue comprise the medical records of the deceased. As such, I am satisfied that their release would involve the disclosure of personal information relating to the deceased and that section 37(1) applies.

However, under subsection (8), Regulations have been made by the Minister for Public Expenditure and Reform (the Minister) which provide for access by certain third parties to records of a deceased individual. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 as amended (S.I. 218 of 2016). At relevant...

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