Mrs X and The Health Service Executive

• Judge: Stephen Rafferty Senior Investigator
• Judgment Date: 25 June 2015
• Case Outcome: The Senior Investigator found that the HSE was not justified in refusing access to the records at issue. He annulled the HSE's decision and directed the release of the records subject to the redaction of a small amount of personal information relating to third parties.
• Court: Information Commission
• Record Number: 150053
• Respondent: HSE West

Whether the HSE was justified under section 28 of the FOI Act in its decision to refuse access to medical records of the applicant's deceased brother

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

Background

On 3 September 2014, the applicant requested access to her deceased brother's medical records. Having sought clarification and further information from the applicant, the HSE issued its decision on 13 November 2014, refusing access to these records under section 28(1) of the FOI Act. On 17 November 2014, the applicant sought an internal review of this decision. The internal reviewer issued his decision on 16 January 2015, refusing access to the records in question having applied the public interest test set out at article 4(1)(b)(iii) of the Freedom of Information Act, 1997 (Section 28(6)) Regulations, 2009. The applicant's request for a review by this Office of the HSE's decision was received on 18 February 2015.

I note that, in correspondence to Mr Niall Mulligan of this Office, the HSE and the applicant have furnished detailed submissions relating to the matters at issue. I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision.

In conducting my review, I have had regard to the HSE's decisions on the matter and its communications with this Office, to the applicant's communications with this Office and the HSE, and to the records at issue, copies of which have been provided to this Office for the purpose of this review. I have also had regard to the provisions of the FOI Act.

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 to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

This review is concerned solely with the question of whether the HSE was justified in refusing access to the medical records of the applicant's deceased brother under section 28 of the FOI Act.

Analysis and Findings

Section 28(1) of the FOI Act provides for the protection of personal information of deceased persons. However, a potential right of access to records of a deceased person arises under section 28(6) of the FOI Act, which provides that, notwithstanding section 28(1), the Minister may provide by regulations for the grant of a request where:

"(b) the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations."

The relevant regulations are the Freedom of Information Act, 1997 (Section 28(6)) Regulations, 2009. Article 4(1)(b)(iii) of those regulations provides that access shall be granted to personal information relating to a deceased person where the requester is:

"the spouse or the next of kin of the individual where in the opinion of the head, having regard to all the circumstances and to any relevant guidelines published by the Minister, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request."

Guidance Notes have been published by the Minister for consideration by decision makers in applying the 2009 Regulations. The Guidance Notes specify certain factors to be taken into consideration in deciding if release is appropriate to such persons, including the following:

"Each case will have to be judged on its own merits. The decision maker will have to balance the public interest in the confidentiality of personal information against the public interest in the right of the requester to access the records. While section 8(4) requires that the decision maker shall disregard any reasons the requester gives for the request, in making a judgment in relation to the records of deceased persons, it is reasonable for a decision maker to inform him or herself as fully as possible of all the circumstances relevant to the request. In reaching this decision, the decision maker should take the following into consideration:

• The confidentiality of personal information as set out in section 28(1) of the Act.
• Would the deceased have consented to the release of the records to the requester when living? If so, this would strengthen the case for deciding to release after death...
• The nature of the relationship of the requester to the deceased and the circumstances of the relationship prior to the death of the deceased...
• The nature of the records to be released. If the record is inherently private, and of a very sensitive nature, then it is likely not to be released unless there are compelling reasons for so doing... In relation to medical records, due regard should be had to the confidentiality of medical records in accordance with the Irish Medical Council Guide to Ethical Conduct and Behaviour. Records containing joint personal information of both the...