Ms X and Health Service Executive

CourtInformation Commission
JudgeSenior Investigator
Judgment Date06 Jul 2021
Case OutcomeThe Senior Investigator affirmed the decision of the HSE.
RespondentHealth Service Executive
Record NumberOIC-104167-J1L5N3
Whether the HSE was justified in refusing access, under section 37(1) of the Act, to records relating to the care of the applicant’s adult daughter held by the Child & Adolescent Mental Health Services

6 July 2021

Background

On 14 January 2020, the applicant made a request through her solicitor for access to all records relating to the care of her daughter held by the Child & Adolescent Mental Health Services (CAMHS). All references to communications with the applicant in this case should be taken to include communications with her solicitor.

In a late decision dated 29 September 2020, the HSE refused the applicant’s request under section 37(1) of the FOI Act on the ground that the records contain the personal information of her daughter. The decision maker stated that as the applicant’s daughter had reached the age of majority since the applicant made her request, the provisions of section 37(8)(a) of the Act and Statutory Instrument 218 of 2016 (which provide for a right of access, subject to certain conditions, by parents to the records of a minor) no longer apply. The HSE said the applicant’s daughter was entitled to seek access to the records in her own right.

On 27 October 2020, the applicant sought an internal review of the HSE’s decision, in which she agreed to limit the scope of the request to records for the three years prior to 12 June 2020. On 19 November 2020, the HSE affirmed its refusal of the request. On 18 February 2021, the applicant sought a review by this Office of HSE’s decision, wherein she drew attention to the fact that her daughter was a minor when the request was first made.

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 referred to above and to the submissions to this Office made by the applicant and the HSE. 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 access, under section 37 of the Act, to the records of the applicant’s daughter held by the CAMHS.

Preliminary Matter

Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. This means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the records where the Act requires a consideration of the public interest.

Analysis and Findings

Section 37 of the FOI Act is concerned with the protection of personal information relating to third parties. Subsection (1), which is subject to a number of other subsections, provides for the mandatory refusal of a request if the public body considers that access to the records sought would involve the disclosure of personal information. Subsection (1) does not apply where the information at issue relates to the requester (subsection (2)(a) refers).

For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of...

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