Ms X and The Health Service Executive

• Judge: Stephen Rafferty, Senior Investigator
• Judgment Date: 13 August 2015
• Case Outcome: The Senior Investigator affirmed the HSE's decision.
• Court: Information Commission
• Record Number: 150092
• Respondent: The Health Service Executive

Whether the HSE was justified in its decision to refuse access to records relating to a deceased person who the applicant believed to be her grandmother under section 28 of the FOI Act

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

By letter dated 16 January 2014 the applicant submitted a request to the HSE for access to records relating to her grandmother, who had been an in-patient at St. Loman's Hospital, Mullingar (St. Loman's). In her letter, she provided some background information relating to her grandmother. In its decision of 5 November 2014, the HSE refused the request on the basis that no relevant records could be found.

The applicant sought an internal review of that decision and following review, the HSE varied its original decision. In a letter dated 13 March 2015, the HSE stated that St. Loman's held certain records relating to more than one person with the same name as the applicant's grandmother and that it was not possible, based on the information supplied by the applicant, to determine which of the records related to the applicant's grandmother and which related to third parties with the same name. On that basis, the HSE refused access to the records under section 28(1) of the Act on the ground that release of the records would involve the disclosure of personal information relating to third parties. On 30 March 2015 the applicant sought a review by this Office of the HSE's decision.

During the course of the review, the HSE confirmed that it had located five records relating to persons bearing the same name as the applicant's grandmother. Having examined the five records, and having regard to the information the applicant has provided both to the HSE and to this Office concerning her grandmother, I am satisfied that one of the records does not relate to the applicant's grandmother and that it is outside the scope of the applicant's request.

I note that Mr Benjamin O'Gorman of this Office informed the applicant of his view that the HSE was justified in refusing access to the four remaining records, and invited the applicant to make further comments if she disagreed with his view. The applicant emailed this Office with further information to substantiate her view that the records should be released. Accordingly, I now consider it appropriate to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the correspondence between the applicant and this Office, to correspondence between the applicant and the HSE and to correspondence between the HSE and this Office. I have also had regard to the contents of the records at issue.

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 its decision to refuse access to any or all of the four records it has identified as coming within the scope of the applicant's request on the basis that release would lead to the disclosure of personal information of third parties.

Analysis and Findings

Before I consider the exemption claimed by the HSE for refusing the request, it is important to note that while I am required by...