Ms. X and The Health Service Executive

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 31 July 2015
• Case Outcome: The Senior Investigator affirmed the HSE?s refusal of access to records requested on the basis that section 37(3) of the FOI Act applied to the records in question. However, she found that the HSE should have notified the applicant of her right to have access to the records offered to such health professional as she may specify.
• Court: Information Commission
• Record Number: 150074
• Respondent: The Health Service Executive

Whether the HSE was justified in its decision to refuse access to psychiatric records concerning the applicant under section 37(3) and/or section 32(1)(b) of the FOI Act.

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Background

On 23 December 2014, the applicant made an FOI request to the HSE for all records from a named Acute Psychiatric Unit for certain dates. I understand that the applicant's intention was that the request was to be confined to records relating to her and the request is treated as such in this decision. On 26 January 2015, the HSE refused access to the records under section 37(3) of the FOI Act as it considered that release of the records directly to the applicant might be prejudicial to her physical or mental health. The applicant sought an internal review of the HSE's decision. On 10 March 2015, the HSE upheld the refusal of access to the records under section 37(3), in addition to which it cited section 32(1)(b) as a further reason to refuse access to the records. This exemption provides for the refusal of records where their release could endanger the life or safety of any person. On 16 March 2015, the applicant applied to this Office for a review of the HSE's decision. On 13 April 2015, the HSE provided submissions in support of its decision. At this stage, I must bring the review to a close by the issue of a formal binding decision as the applicant requires this.

In conducting this review, I have had regard to correspondence between the applicant and the HSE, to correspondence between the HSE and this Office, to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the FOI Act.

Scope of Review

The HSE identified two files of records as being relevant to the applicant's request. The first file contains 267 pages of records and the second file contains 133 pages of records. The majority of records in both files are from dates other than those specified by the applicant and fall outside the scope of this review. The records in file one which fall within the scope of the applicant's request are contained at pages numbers: 82, 83, 97-101, 172-173, 209-212, 213, 218-221, 223-230, 231-234, 240, 256-259, 260, 261, 262, 263, 264, 265, 266-267. The records in file two which fall within the scope of the applicant's request are contained at pages numbers: 7-16, 19-22, 23, 24-25, 28-37, 38-49. The scope of this review is confined to whether the HSE has justified its refusal of the above mentioned records on the basis that sections 37(3) and/or 32(1)(b) of the FOI Act apply to these records.

Preliminary Matters
Section 22(12)(b) of the FOI Act provides that, where a decision to refuse a request is being reviewed by the Information Commissioner, there is a presumption that the refusal...