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Ms. B and the Health Service Executive (FOI Act 2014)

Case Number: 160088

 

Whether the HSE was justified in its decision to refuse access to the applicant's medical records on the basis that section 37(3) of the FOI Act applied

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

In her original FOI request of 10 August 2015, the applicant sought access to her psychiatric records for "2011 to present [in an area] and any files in [a ] Hospital from present back to 2009". In its decision of 9 November 2015, the HSE refused access to the information sought on the basis that section 37(3) of the FOI Act applied. It offered the applicant the opportunity to nominate a health professional to access the records on her behalf, in accordance with section 37(4) of the FOI Act. The applicant sought an internal review on 10 February 2016. The HSE's internal review decision of 22 February 2016 affirmed the original decision. The applicant submitted an application for review to this Office, which was received on 25 February 2016.

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the HSE, to the nature and content of the records and to the provisions of the FOI Act. I have decided to conclude the review by making a formal, binding decision.

Scope of Review

The review relates solely to whether the decision of the HSE to refuse access to the information sought was justified on the basis of section 37(3).

Preliminary Matters

Section 18
I should explain the approach to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading.

Section 22
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

Section 25(3)
Although I am obliged to give reasons for my decision, Section 25(3) of the FOI Act requires the me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the content of the records or give detailed reasons for my decision is limited.

The release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Analysis and Findings

As set out above, the position of the HSE is that section 37(3) applies to the information to which access has been refused, and access was offered in accordance with section 37(4).

Sections 37(3) and 37(4)
Section 37(3) of the FOI Act provides:

" Where an FOI request relates to
(a) a record of a medical or psychiatric nature relating to the requester concerned, or
(b) a record kept for the purposes of, or obtained in the course of the carrying out of, social work in relation to the requester,

and, in the opinion of the head concerned, disclosure of the information concerned to the requester might be prejudicial to his or her physical or mental health, well-being or emotional condition, the head may decide to refuse to grant the request."

Section 37(4) provides:

" Where, pursuant to subsection (3), a head refuses to grant an FOI request
(a) there shall be included in the notice under section 13 (1) in relation to the matter a statement to the effect that, if the requester requests the head to do so, the head will offer access to the record concerned, and keep it available for that purpose, in accordance with section 13 (3) to such health professional having expertise in relation to the subject-matter of the record as the requester may specify, and
(b) if the requester so requests the head, he or she shall offer access to the record to such health professional as aforesaid, and keep it available for that purpose, in accordance with section 13 (3)."

Section 13(3) provides for the records to be kept available for the purposes of access for a period of 4 weeks after the making of a decision.

The intention of section 37(4) would appear to be to ensure that information about possibly disturbing records may be given with the assistance of a health professional of the requester's choosing. The FOI Act does not appear to envisage any role for the Commissioner in relation to the making of arrangements between the Hospital, the applicant and the health professional having expertise in relation to the subject-matter of the record as the requester may specify. I note that section 37 (9) of the FOI Act defines 'health professional' and that regulations made under that section (SI No 368 of 2001) prescribe classes of health professional.

Requests falling to be refused under section 37(3) are not subject to the public interest balancing test at section 37(5)(a) of the FOI Act.

The withheld records are of a psychiatric nature. Having reviewed the records at issue and the submissions of the HSE, I consider the provisions of section 37(3) to apply to those parts of the record relating solely to the applicant. I note that arrangements were made between the applicant and the HSE for her to view her records under the supervision of a HSE health professional nominated by the applicant. However, the applicant did not find this satisfactory and sought direct access to the information.

In the absence of relevant evidence from a psychiatrist or other appropriate health professional, I have to base my decision in relation to whether disclosure of the information in them might be prejudicial to the applicant's mental health, well-being or emotional condition on the only evidence available, that is, the evidence provided by the HSE. The former Commissioner explained his approach to the operation of the section 28(3) provision (section 37(3) of the 2014 Act) in Case Number 99189 - X and a Health Board [published on www.oic.ie]. I believe that, in this case, the HSE has provided evidence to support the opinion that there is a real and tangible possibility that harm might be caused to the well-being of the requester as a result of unmediated access to the records in question.

I am satisfied that the HSE is justified in refusing access to these records on the basis that section 37(3) of the FOI Act applies, and I find accordingly. However, under section 37(4) the HSE must, at the applicant's request, offer access to the records to a health professional having expertise in the subject matter of the records.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the HSE that the withheld records are exempt from release under section 37(3) and I find that section 37(4) is engaged in relation to the offer of access to an appropriate health professional if requested by the applicant.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator