Whether the Council was justified in its decision to refuse access to records relating to the applicant's late husband, under section 37(1) of the FOI Act

28 January 2019  

Background

On 25 February 2018, the applicant made a request to the Council for all personal data and medical records held by the Council relating to her late husband. On 28 March 2018, the Council issued a decision in which refused the applicant's request on the ground that granting access to the records would involve the disclosure of personal information relating to the applicant's late husband. By letter dated 10 April 2018 the applicant sought an internal review of that decision.

The Council issued its internal review decision on 9 May 2018, in which it refused access to the records sought under section 37 of the FOI Act 2014. On 27 September 2018, the applicant sought a review by this Office of the Council's decision. In her application for review, the applicant stated that she was also the personal representative of her late husband's estate and she submitted documentation in support of that claim.
 
In conducting my review, I have had regard to the correspondence between the applicant and the Council as outlined above and to the correspondence between this Office and both parties on the matter. 

Scope of the Review

This review is concerned solely with whether the Council was justified in refusing to grant the applicant's request for access to her late husband's records under section 37(1) of the FOI Act.  

Preliminary Matters

Before I consider the substantive issues arising, I would like to make two preliminary comments. Firstly, section 22(12)(b) of the FOI Act provides that in a review by the Commissioner, a decision to refuse a request is presumed not to have been justified unless the public body shows to the satisfaction of the Commissioner that the decision was justified. Therefore in this case, the onus is on the Council to satisfy this Office that its decision to refuse to grant access to the records at issue was justified.

Secondly, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited. 

Analysis and Findings

Section 37(1) of the Act provides for the mandatory refusal of a request where the public body considers that access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester, including personal information relating to a deceased individual. I accept that the disclosure of the records at issue in this case would involve such a disclosure. However, section 37(1) is also subject to the other provisions of section 37.

Section 37(8) provides that, notwithstanding subsection (1), the Minister may provide by regulations for the grant of a request where the individual to whom the record concerned relates is deceased. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016). 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 andshall, subject to the other provisions of the FOI Act 2014, be granted, where the requester belongs to one or other of the following classes:

(i)  a personal representative of the deceased 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,

(ii) a person on whom a function is conferred by law in relation to the deceased individual or his or her estate acting in the course of the performance of the functions, or

(iii) the requester is the spouse or the next of kin of the individual and, in the opinion of the head, 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.

It is worth noting that neither of the decision letters issued by the Council made any reference to S.I. 218 of 2016 or gave any indication that the Regulations were considered in the decision making processes. During the course of the review, Ms Hannon of this Office invited the Council to make a submission in support of its refusal of the request, wherein she drew the Council's attention to the Regulations.

In its response, the Council stated that it did indeed, consider the Regulations. It stated that it concluded that the public interest would not, on balance, be better served by granting the request on the basis of a number of factors, namely;

• the Health and Safety Authority has not confirmed that it has concluded its investigation into the incident regarding the deceased,
• the matter is still under consideration by the DPP as far as it is aware,
• the Council is a third party in the investigation to be carried out by the Coroner's Court, and
• solicitors for the applicant have been in contact with the Council regarding potential proceedings.

The Council's submission suggests that it considered the applicant's request under category (iii) above, as spouse of the deceased. I am not convinced by the Council's assertion that it considered the Regulations when processing the request given the absence of any mention of the Regulations in its decision letters. Even if it did, it appears that the Council did not have due regard to the accompanying guidance issued by the Minister for Public Expenditure and Reform pursuant to the provisions of section 48(1) of the Act. That section provides that the Minister may draw up and publish guidelines for the effective and efficient operation of the Act to assist FOI bodies in the performance of their functions under the Act and that FOI bodiesshallhave regard to such guidelines.

The relevant guidance is available on the website of the Central Policy Unit of the Department of Public Expenditure and Reform and I expect that the Council is aware of its existence. In considering whether the applicant has a right of access to the records sought under category (iii), the question the Council must consider is whether, 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 relevant guidance suggests that each case must be judged on its own merit and that the decision maker will have to balance the public interest in the confidentiality of personal information against the public interest in the right of the requester to access the records. It suggests that in light of the requirement on the decision maker to have regard to "all the circumstances", the factors to be considered include:

• the confidentiality of personal information
• whether the deceased would have consented to the release of the records to the requester when living
• would the release damage the good name and character of the deceased
• the nature of the relationship of the requester to the deceased and the circumstances of their relationship prior to the death of the deceased
• the nature of the records to be released
• can the requester obtain the information sought without accessing the records of the deceased

It seems to me that the Council had regard to none of these factors. Instead, it has identified factors of relevance to the investigation of an incident relating to the deceased. Even then, it has not explained how those factors led it to find that the public interest would, on balance, be better served by refusing the request. It is noteworthy that the FOI Act contains a number of exemptions which are aimed at protecting matters such as the effectiveness of investigations and investigative processes, the fairness of court proceedings etc. and that it was open to the Council to seek to apply those exemptions but it did not do so. 

It is also noteworthy that the applicant has indicated that she is the personal representative of the deceased, thus potentially giving her a right of access to the records as a person coming within category (i), although it is important to note that such a person must be acting in due course of administration of the individual's estate for a right of access to exist.

In summary, therefore, I am not satisfied that the Council properly considered S.I. 218 of 2016 when processing the applicant's request or that it has justified its decision to refuse the request. However, in light of the nature and contents of some of the records at issue, I do not consider it appropriate to simply direct the release of the records. Instead, I consider that the appropriate course of action is to annul the Council's decision and direct it to undertake a fresh decision-making process, during which it must have due regard to section 37(8) and the provisions of the 2016 Regulations. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Council in this case. I direct it to undertake a fresh decision making process in respect of the applicant-™s request, having due regard to the provisions of the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016.

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.

                                   
Stephen Rafferty
Senior Investigator