FREEDOM OF INFORMATION ACT 1997

Personal information.

28

28. (1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased individual).

(2) Subsection (1) does not apply if—

( a) subject to subsection (3), the information concerned relates to the requester concerned,

( b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester,

( c) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,

( d) the information was given to the public body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or

( e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual,

but, in a case falling within paragraph (a) or (b), the head concerned shall ensure that, before the request under section 7 concerned is granted, the identity of the requester or, as the case may be, the consent of the individual is established to the satisfaction of the head.

(3) Where a request under section 7 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.

(4) Where, pursuant to subsection (3), a head refuses to grant a request under section 7

( a) there shall be included in the notice under section 8 (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 8 (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 8 (3) .

(5) Where, as respects a request under section 7 the grant of which would, but for this subsection, fall to be refused under subsection (1), in the opinion of the head concerned, on balance—

( a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or

( b) the grant of the request would benefit the individual aforesaid,

the head may, subject to section 29 , grant the request.

F56 [ (5A) Where

( a ) a request under section 7 relates to a record to which subsection (1) applies but to which subsections (2) and (5) do not apply or would not, if the record existed, apply, and

( b ) in the opinion of the head concerned the disclosure of the existence or non-existence of the record would have the effect specified in subsection (1),

he or she shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists.

(5B) Notwithstanding paragraph ( a ) of subsection (2), a head shall, subject to paragraphs ( b ) to ( e ) of that subsection and subsections (5) and (6), refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester. ]

(6) Notwithstanding subsection (1), the Minister may provide by regulations for the grant of a request under section 7 where—

( a) the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual, or

( b) the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations.

(7) In this section “ health professional” means a medical practitioner, within the meaning of the Medical Practitioners Act, 1978, a registered dentist, within the meaning of the Dentists Act, 1985, or a member of any other class of health worker or social worker standing prescribed, after consultation with such (if any) other Ministers of the Government as the Minister considers appropriate.

Annotations:

Amendments:

F56

Inserted (11.04.2003) by Freedom of Information (Amendment) Act 2003 (9/2003), s. 23, commenced on enactment.

Modifications (not altering text):

C29

Application of section restricted (23.09.2009) by Freedom of Information Act 1997 (Section 17(6)) Regulations 2009 (S.I. No. 385 of 2009), reg. 4.

4. (1) Notwithstanding section 28(1), an application under section 17 in relation to a record that includes personal information that is incomplete, incorrect or misleading, may, subject to the other provisions of the Freedom of Information Act 1997, be made where:

(a) the applicant is a parent or guardian of the individual (“the individual”) to whom the information in the record concerned relates and the individual belongs to one of the following classes of individual:

(i) individuals who, on the date of the application, have not attained full age (within the meaning of the Age of Majority Act 1985 (No. 2 of 1985)), or

(ii) individuals who, on the date aforesaid, have attained full age (within the meaning aforesaid), and have a mental condition, or a mental incapacity, or a severe physical disability, the incidence and nature of which is certified by a registered medical practitioner (within the meaning of the Medical Practitioners Act 1978 (No. 4 of 1978)) and who, by reason thereof, are incapable of exercising their rights under the Freedom of Information Act 1997,

and the individual is an individual as respects whom the granting of the application would, in the opinion of the head concerned, having regard to all the circumstances and to any guidelines drawn up and published by the Minister, be in his or her best interests, or

(b) the individual (“the individual”) to whom the information in the record concerned relates is dead and the applicant belongs to one of the following classes of applicant:

(i) a personal representative of the individual acting in due course of administration of his or her 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 individual or his or her estate acting in the course of the performance of the function, and

(iii) the spouse or the next of kin of the individual where in the opinion of the head, having regard to all the circumstances and to any relevant guidelines published by the Minister, 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.

(2) In this Regulation “spouse” includes:

(a) a party to a marriage that has been dissolved, being a dissolution that is recognised as valid in the State or who is living apart from his or her wife or husband pursuant to a deed of separation, and

(b) a man or woman who was not married to but cohabited as husband or wife, as the case may be, with the deceased individual,

and

“next of kin” is the person or persons standing nearest in blood relationship to the individual in accordance with section 71(2) of the Succession Act, 1965.

C30

Application of section restricted (23.09.2009) by Freedom of Information Act 1997 (Section 28(6)) Regulations 2009 (S.I. No. 387 of 2009), reg. 4.

4. (1) Notwithstanding section 28(1), a request under section 7 in relation to a record access to which involves the disclosure of personal information (including personal information relating to a deceased individual) shall, subject to the other provisions of the Freedom of Information Act, 1997, be granted where:

(a) the requester is a parent or guardian of the individual to whom the record concerned relates and that individual belongs to one of the following classes of individual:

(i) individuals who, on the date of the request, have not attained full age (within the meaning of the Age of Majority Act, 1985 (No. 2 of 1985)), or

(ii) individuals who have attained full age (within the meaning aforesaid), who at the time of the request have a mental condition or mental incapacity or severe physical disability, the incidence and nature of which is certified by a registered medical practitioner and who, by reason thereof, are incapable of exercising their rights under the Act,

being individuals specified in clauses (i) and (ii) access to whose records would, in the opinion of the head having regard to all the circumstances and to any guidelines drawn up and published by the Minister, be in their best interests, or

(b) the individual to whom the record concerned relates is dead (“the individual”) and the requester concerned belongs to one of the following classes of requester:

(i) a personal representative of the individual acting in due course of administration of his or her 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 individual or his or her estate acting in the course of the performance of the function, and

(iii) the spouse or the next of kin of the individual where in the opinion of the head, having regard to all the circumstances and to any relevant guidelines published by the Minister, 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.

(2) In this Regulation, “spouse” includes:

(a) a party to a marriage that has been dissolved, being a dissolution that is recognised as valid in the State, or who is living apart from his or her wife or husband pursuant to a deed of separation, and

(b) a man or woman who was not married to but cohabited as husband or wife, as the case may be, with the deceased individual,

and,

“next of kin” is the person or persons standing nearest in blood relationship to the individual in accordance with section 71(2) of the Succession Act, 1965.

Editorial Notes:

E51

Power pursuant to section exercised (23.09.2009) by Freedom of Information Act 1997 (Section 28(6)) Regulations 2009 (S.I. No. 387 of 2009), see C-note above.

E52

Power pursuant to section exercised (25.07.2001) by Freedom of Information Act, 1997 (Classes of Health Professionals) Regulations 2001 (S.I. No. 368 of 2001).

E53

Previous affecting provision: application of section restricted (7.07.2003) by Freedom of Information Act 1997 (Section 17(6)) Regulations 2003 (S.I. No. 265 of 2003); revoked (23.09.2009) by Freedom of Information Act 1997 (Section 17(6)) Regulations 2009 (S.l. No. 385 of 2009), reg. 2.

E54

Previous affecting provision: application of section restricted (12.02.1999) Freedom of Information Act 1997 (Section 28(6)) Regulations 1999 (S.I. No. 47 of 1999), revoked (23.09.2009) by Freedom of Information Act 1997 (Section 28(6)) Regulations 2009 (S.I. No. 387 of 2009).

E55

Previous affecting provision: application of section restricted (22.12.1998) by Freedom of Information Act, 1997 (Section 28(1)) (Amendment) Regulations 1998 (S.I. No. 521 of 1998); revoked (22.05.2003) by Freedom of Information Act 1997 (Miscellaneous Revocations) Regulations 2003 (S.I. No. 206 of 2003), reg. 2(c).