JM and the Health Service Executive

• Court: Information Commission
• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 07 October 2015
• Case Outcome: The Senior Investigator affirmed the decision of the HSE. She found that section 37(7) applies to the information sought which is the joint personal information of the child and the mother and that none of the exceptions provided for in section 37 apply.
• Record Number: 150176
• Respondent: Health Service Executive

Whether the HSE was justified in its decision to refuse access to electrocardiograph recordings of the applicant's child's heartbeat prior to the child's birth

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

In his original request of 5 November 2014, the applicant sought access to the electrocardiograph recordings of his deceased child's heartbeat. In its original decision of 14 November 2014, the HSE refused the request on the basis that the information sought was joint personal information of the baby and the mother and written consent from the mother would be required for the information to be released. In response to the applicant's internal review request, in which it was suggested that a redacted version of the record could be released, the HSE affirmed its original decision. The applicant submitted an application for review to this Office by letter dated 11 June 2015.

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the HSE, to the content of the record and to the provisions of the FOI Acts. I have decided to conclude the review by making a formal, binding decision.

Scope of Review

The review relates solely to whether the decision of the HSE to refuse access to the record sought was justified.

Preliminary Matters

Section 18
I should explain the approach to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading.

Analysis and Findings

Section 37
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. In a situation where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information about another party (or parties), and where it is not feasible to separate the personal information from that relating to the other party (or parties), it can be described as joint personal information. Section 37(7) further provides for the refusal of a request where the body considers that access to the record 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 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 including information relating to the medical history of an individual.

The HSE refused access to the record on the basis that it is joint personal information. The record is the cardiotocography (CTG) trace showing the heartbeat of the applicant's child prior to birth. CTG is a form of monitoring used before or...