Mr O'C and the Health Service Executive

• Court: Information Commission
• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 21 July 2015
• Case Outcome: The Senior Investigator, following notification by the HSE of a change in its position, annulled the decision to refuse access to records on the basis of section 28(3) and directed that a fresh decision making process be undertaken.
• Record Number: 150130
• Respondent: HSE West

Whether the HSE was justified in refusing the applicant's request for access to records relating to him on the basis of section 28(3) of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who authorised by the Information Commissioner to conduct this review

Background

On 23 July 2014, the applicant made a request for access to his medical records. The HSE refused access on 10 November 2014 on the basis of section 28(3) of the Act. On 21 November 2014, the applicant requested an internal review of this decision and on 1 December 2014 the HSE upheld its original decision. The applicant applied to this Office for a review of that decision on 26 April 2015.

I have now completed my review in accordance with section 34(2) of the FOI Act. In carrying out my review, I have had regard to the provisions of the FOI Act and to the submission made by the applicant. In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

The scope of the review was related to whether or not the HSE was justified in refusing access to the applicant's medical records on the basis that to do so would have been prejudicial to the physical or mental health, well-being or emotional condition of the applicant.

Analysis and Findings

The HSE refused this request on the basis of section 28(3) of the Act. Section 28(3) provides for the refusal of a request for a "record of a medical or psychiatric nature relating to the requester concerned, or a record kept for the purposes of, or obtained in the course of the carrying out of, social work in relation to the requester" where, in the opinion of the head, release of the information therein "might be prejudicial to [the person's] ... physical or mental health, well-being or emotional condition."

The applicant had been advised that there were concerns around the effect that release of the records would have on his psychological, emotional or psychiatric well being. However, having reconsidered the matter, the HSE...