Ms Y and Health Service Executive

• Jurisdiction: Ireland
• Judge: Senior Investigator
• Judgment Date: 02 December 2021
• Case Outcome: The Senior Investigator annulled the decision of the HSE and directed the release of the records subject to the redaction of certain third party personal information contained in the records.
• Court: Information Commission
• Respondent: Health Service Executive
• Record Number: OIC-108638-W9V4Y6

Whether the HSE was justified in refusing, under section 37 of the FOI Act, the applicant’s request for access to her late mother’s file in connection with the Fair Deal Scheme

OIC-108638-W9V4Y6

Background

In a request dated 25 January 2021, the applicant sought access to her late mother’s file in relation to the ancillary state support and nursing home loan (the Fair Deal Scheme). In a letter dated 3 March 2021 to the applicant, the HSE explained that the request was for personal information relating to a third party and that he request fell to be considered pursuant to section 37(8) of the Act and the associated Regulations.

It noted that the Regulations provide for a right of access to the records of deceased persons by certain categories of requester. It sought a copy of her late mother’s death certificate and evidence of her standing with regard to the administration of her late mother’s estate, or consent of the person administering the estate. While the applicant provided certain information in response, the HSE wrote to her again on 8 March 2021 and informed her that the information provided was not sufficient. It said that if she did not provide the required information, the request would be treated as one to which the Regulations did not apply.

On 1 April 2021, the HSE noted that the applicant had not provided the information sought and it refused the request under section 37(8). The applicant sought an internal review of the refusal of her request, following which the HSE affirmed the refusal of the request, but on the ground that section 37(1) of the Act applied and that the regulations did not provide for a right of access in the particular circumstances of the case. On 8 June 2021, the applicant sought a review by this Office of the HSE’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence outlined above and to the submissions made by both parties. I have decided to conclude this review by way of a formal, binding decision. I have also had regard to the contents of the records at issue which the HSE supplied to this Office for the purpose of conducting the review. In referring to the records at issue, I have adopted the numbering system used by the HSE in the schedule of records containing 54 pages which it provided to this Office.

Scope of Review

This review is concerned solely with the question of whether the HSE was justified in refusing, under section 37 of the Act, the applicant’s request for the relevant file relating to her late mother.

Analysis and Findings

The Legislation

Subsection (1) of section 37 requires, subject to the other provisions of the section, an FOI body to refuse a request where access to the records would involve the disclosure of personal information, including personal information relating to a deceased individual. However, under subsection (8), Regulations have been made by the Minister for Public Expenditure and Reform 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 (S.I. 218 of 2016), as amended (the Regulations). Among other things, the regulations provide that notwithstanding section 37(1), a request may be made for records which involves the disclosure of personal information relating to a deceased individual and shall, subject to the other provisions of the FOI Act 2014, be granted, where:

1. “the requester concerned belongs to one or other of the following classes:

1. a personal representative of the individual acting in due course of administration of the individual’s estate or any person acting with the consent of a personal representative so acting,
2. a person on whom a function is conferred by law in relation to the individual or his or her estate acting in the course of the performance of the function,

or

2. the requester is the spouse or the next of kin of the individual and, in the opinion of the head [of the relevant FOI body], having regard to all the circumstances, 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”.

The class of requester identified in part (b) above is the spouse or the next of kin of the individual. Regulation 8 of the 2016 Regulations defines “next of kin” as follows:

1. issue,
2. parent,
3. brother or sister,
4. a niece or nephew, or,
5. any other person standing nearest in blood relationship to the individual in accordance with section 71(2) of the Succession Act 1965 (No.27 of 1965).

The Regulations provide that, if two or more persons fall within that paragraph, each of them shall be regarded as next of kin of the particular individual. In other words, in this case each of the children of the deceased are regarded as her next of kin.

It is not disputed that all of the information at issue in this case comes within the definition of personal information in section 2 of the Act, nor is it disputed that the applicant is a daughter of the deceased and is considered to be the next of kin for the purposes of the Regulations. The issue to be considered, therefore, is whether, having regard to all the circumstances, 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.

Pursuant to section 48(1) of the Act, the Minister for Public Expenditure and Reform published guidance concerning access to records relating to deceased persons. Under section 48(3) public bodies must have regard to such guidance in the performance of their functions under the Act. The guidance states that it is a matter for the decision maker to make such enquiries and engage in such consultation as is necessary to allow him or her to decide if the public interest would be better served by granting than by refusing the request. It suggests that certain factors should be taken into consideration when deciding if release is appropriate to the spouse or next of kin of the deceased, including:

• the confidentiality of personal information as set out in section 37(1)
• whether the deceased would have consented to the release of the records to the requester when living
• whether the person had outlined arrangements in his or her will or other instrument in writing consenting to the release of personal records
• would release damage the good name and character of the deceased
• the nature of the relationship of the requester to the deceased and the circumstances of their relationship before the deceased's death
• the nature of the records to be released.
• whether the requester can get the information they want without accessing the records of the deceased
• any other relevant circumstances that the requester may set out.

The HSE’s position

In its submission to this Office, the HSE said that the applicant is neither the personal representative of the individual acting in due course of administration of the individual’s estate or acting with the consent of the personal representative so acting, nor is she a person on whom a function is conferred by law in relation to the individual or her estate acting in the course of the performance of the function.

It noted that the...