A Solicitors on behalf of Mr B & Health Service Executive (HSE)

Whether the HSE is justified in its decision to refuse access to the mental health records of the Applicant's deceased wife on the basis that the records are exempt from release under section 28(1) of the FOI Act and the request does not fall to be granted under the FOI Act 1997 (Section 28(6) Regulations) 2009 (S.I. No 387 of 2009) (the 2009 Regulations).

On 25 March 2010, the Applicant's solicitor wrote to the HSE seeking access to the ''medical records'' of his client's deceased wife held by a day centre which she had attended. The HSE refused access to the records on the basis of section 28 of the FOI Act in its decision of 30 April 2010. The decision was upheld in the internal review of this decision of 8 June 2010.

The Applicant applied to my Office on 28 June 2010 for a review of the HSE's decision. I note that Ms Alison McCulloch, Investigator in my Office, wrote to the Applicant on 21 October 2010 setting out her preliminary views on the matter and that the Applicant responded on 1 November 2010. I note also that the attention of the Applicant was drawn to the Guidance Notes in relation to section 28(6) which had not been mentioned in the HSE's decision.

In conducting this review, I have had regard to the submissions of the Applicant (including those made to the HSE) as well as those of the HSE. I have also carefully examined the records provided to my Office by the HSE for the purposes of this review. I have considered the relevant provisions of the FOI Act, the 2009 Regulations and the relevant Guidance Notes published by the Minister for Finance.

Conducted in accordance with section 34(2) of the FOI Act by the Information Commissioner.