Mr C and Health Service Executive

CourtInformation Commission
JudgeSenior Investigator
Judgment Date25 Jun 2021
Case OutcomeThe Senior Investigator affirmed the decision of the HSE to refuse access to the medical records of the applicant's deceased aunt under section 37(1) of the FOI Act.
RespondentHealth Service Executive
Record NumberOIC-105425-F0N8M8
Whether the HSE was justified in refusing access to the medical records of the applicant’s deceased aunt under sections 35(1)(a) and 37(1) of the FOI Act

25 June 2021

Background

In a request dated 28 October 2020, the applicant sought access to all medical records in possession of a named hospital in relation to his aunt who died in September 2020. On 11 November the HSE wrote to the applicant and explained that there is no automatic right of access to the records of deceased persons. It explained that it would be considering various provisions of the act, including regulations that provide for the release of the records of deceased persons to certain categories of requester in certain circumstances. It provided details of documentation required to determine if the applicant was an appropriate person to whom the records might be released. It appears that the applicant had a telephone conversation with the HSE following receipt of that letter wherein he explained that we wanted to access the records for his personal perusal.

In a decision dated 14 December 2020, the HSE refused the request under sections 35(1)(a) and 37(1) of the FOI Act on the grounds that the records contained information given in confidence and contained personal information, including personal information relating to a deceased individual. It again provided details of documentation it required to determine if the applicant was an appropriate person to whom the records might be released.

On 17 December 2020, the applicant sought an internal review of the HSE’s decision, wherein he described himself as his late aunt’s next of kin. In its internal review decision of 20 January 2021, the HSE affirmed its refusal of the request. The internal reviewer referred to the relevant regulations that provide for the release of the records of deceased persons and determined that the public interest would not be better served by the release of the records. On 23 March 2021, the applicant sought a review by 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. In conducting the review, I have had regard to correspondence between the applicant and the HSE as described above, and to the communications and correspondence between this Office and both the applicant and the HSE on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with the question of whether the HSE was justified in refusing the applicant’s request for access to the medical records of his deceased aunt under sections 35(1)(a) and 37(1) of the FOI Act.

Analysis and Findings

Having regard to the nature of the information at issue, it appears to me that section 37 is of most relevance in this case. Accordingly, I will consider the applicability of section 37 in the first instance.

Section 37(1)

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.

Section 2 of 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. Without prejudice to the generality of the...

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