Ms Y and Health Service Executive

CourtInformation Commission
JudgeSenior Investigator
Judgment Date02 December 2021
Case OutcomeThe 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.
RespondentHealth Service Executive
Record NumberOIC-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

  1. 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...

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