BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

Whether the HSE was justified in its decision to refuse access to records relating to the operation of the ambulance service in County Donegal under sections 20(1), 21(1)(a), 21(1)(c), and 23(1)(a)(i) of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 1 January 2014, the applicant submitted a request to the HSE for access to records relating to the operation of the ambulance service in County Donegal on a particular date. By way of letter dated 10 February 2014 the HSE refused access to the records sought on the basis of sections 20(1), 21(1)(a), 21(1)(c), and 23(1)(a)(i) of the FOI Act. The applicant sought an internal review of this decision by way of letter dated 14 February 2014. The internal reviewer upheld the decision to refuse access to the records. The outcome of the internal review was communicated to the applicant by way of letter dated 19 March 2014. On 2 April 2014, the applicant sought a review by this Office of the HSE's decision.

In the course of this review, following correspondence with Mr. Niall Mulligan, investigating officer, the HSE indicated that it was willing to release the records in question subject to the redaction of personal information of third parties. The HSE elected to release a sample of the records to the applicant, with redactions of certain information, including the matter for which the ambulance service was sought, details of the address, caller identity, crew identity, and patient details. The applicant was satisfied to receive the records subject to the redactions proposed, except in the case of addresses. He explained that he was interested in receiving details of the geographic spread of incidents, the allocation of resources to those areas and the related response times. He submitted that providing one line of an address, e.g. Killybegs, Letterkenny etc. would not compromise the privacy of a patient as it would not be sufficiently particular as to lead to the identification of individuals.

However, it now appears that the proposed settlement will not be acted upon by the HSE. I note that Mr Mulligan offered the HSE a final opportunity to provide further submissions by 24 September 2014. He stated that if no response was received by that date, it would be presumed that the HSE had no further submission to make and that a decision may issue without further reference to the HSE. As matters transpired, no further correspondence was received from the HSE. I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision.

In conducting my review, I have had regard to copies of the records provided to this Office for the purpose of this review, the HSE's decision on the matter and its communications with this Office, as well as the applicant's communications with this Office and the HSE. I have also had regard to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

Under the circumstances, given that the proposed settlement has not been effected, this review is concerned solely with the question of whether the HSE was justified in its decision to refuse access to the records sought pursuant to sections 20(1), 21(1)(a), 21(1)(c), and 23(1)(a)(i) of the FOI Act.

Preliminary Matters

Section 8(4) of the FOI Act expressly provides that, subject to the provisions of the FOI Act, any reasons that the applicant has, or is believed to have, for making a request shall be disregarded. Furthermore, section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the HSE to satisfy this Office that its decision to refuse access to the records sought was justified.

Analysis and Findings

The applicant's request was for access to records relating to the operation of the ambulance service in County Donegal on a particular date, to include details of the calls logged and response times. The HSE identified 45 records as coming within the scope of the request, being records of incidents logged on the date in question. The records include, among other things, details of the times at which calls for ambulance assistance were received, times of arrival at, and departure from, the scenes of incidents, and details of patients and their medical treatment.

Section 20(1)
Section 20(1) of the FOI Act provides that:-

"A head may refuse to grant a request under section 7 if the record concerned contains matter relating to the deliberative processes of a public body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes)."

It appears that the HSE's arguments for withholding the records at issue relate primarily to the fact that an independent review is in progress in relation to a specific incident which occurred on the date in question, and to which one of the records at issue refers. The HSE states that the terms of the review were set out with the purpose of establishing all factors which impacted on the ambulance service response to the incident. It further states that it has since received legal correspondence relating to the incident in question and that, in accordance with appropriate procedure, the matter was formally notified to the State Claims Agency, the organisation responsible for managing HSE personal injury and third party property damage claims. It states that the resources and activities of the National Ambulance Service for the day in question would be part of the investigative process to establish the findings on foot of the independent review and any subsequent investigation by the State Claims Agency.

The deliberative process can be described as a "thinking process" that refers to the way a public body makes decisions. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. It is not clear to me that the review identified by the HSE comprises such a process. Rather, the purpose of the review was to investigate and establish the factors which impacted on the ambulance service response to the specific incident. The HSE has not argued, for example, that the review comprises a general review of the provision of ambulance services with a view to formulating a policy on how best to provide those services. Accordingly, I am not satisfied that the records at issue in this case would fall for exemption under section 20(1).

In any event, section 20(2) of the FOI provides that:-

"Subsection (1) does not apply to a record if and in so far as it contains --

... (b) factual information"

Having examined the records, I am satisfied that they contain only factual information, and therefore section 20(1) cannot apply. I find accordingly.

Section 21
The HSE relied upon sections 21(1)(a) and 21(1)(c) of the FOI Act in its decision. The relevant subsections state that:-

"A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to:­

(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof ...

(c) disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or a public body."

In arriving at a decision to claim a section 21 exemption, a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. At the time that it made its submission, on 5 May 2014, the HSE claimed that the independent review had not been completed and the relevant report had not been circulated. In the course of this review, the HSE stated on a number of occasions that the report was to be delivered on particular dates. It is not clear, however, whether this has been done, and for present purposes it shall be taken that the report has not yet been delivered.

Having regard to section 21(1)(a) of the FOI Act, I am not satisfied that the HSE has demonstrated that a harm will arise from the disclosure of the records. While the HSE submits that the records form "part of the investigative process to establish the findings and determination ... in this matter", no particular prejudice has been identified that may be expected to arise from the release of the records. I therefore find that section 21(1)(a) does not apply.

In relation to section 21(1)(c) of the FOI Act, generally speaking, that subsection is designed to protect negotiating positions or plans, etc., from being disclosed directly or indirectly to other parties. The Commissioner accepts that, generally speaking, proposal-type information relating to a public body's negotiations would be exempt under section 21(1)(c). In this case, however, the records relate to factual information, and do not disclose any matters relating specifically to the conduct of negotiations. I therefore find that section 21(1)(c) of the FOI Act does not apply.

Having so found, it is not necessary for me to consider the public interest test contained at section 21(2).

Section 23(1)(a)(i)
Section 23(1)(a)(i) of the FOI Act provides that a request for access to a record may be refused where to grant access could reasonably be expected to prejudice or impair:-

"the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid".

In this case, the HSE has referred to an independent review and an investigation by the State Claims Agency. It does not appear that either of these investigations relate to offences, nor to the apprehension or prosecution of offenders. Neither has the HSE shown how the release of the records at issue could reasonably be expected to give rise to any of the harms identified in section 23(1)(a). I am therefore satisfied that section 23(1)(a)(i) of the FOI Act does not apply. I find accordingly.

Section 28(1) - Personal Information of third parties
Having found that the HSE was not justified in its decision to refuse the records under sections 20(1), 21(a), 21(c) and 23(1)(a)(i) of the FOI Act, it remains for me to consider the position as regards the personal information of individuals that is contained in the records.

As previously outlined, following correspondence with Mr Mulligan, the applicant accepted that redactions personal information of third parties would be appropriate, including details of their treatment, telephone numbers, and other information, with the exception of a redactions to the addresses of the third parties to whom the records relate.

Section 28(1) of the FOI Act provides that a public body shall refuse to grant access to a record where access would involve the disclosure of personal information of an individual other than the requester. Section 2 of the FOI Act generally defines "personal information" as as information relating to an identifiable individual that:-

"(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or
(b) is held by a public body on the understanding that it would be treated by it as confidential,"

I am satisfied the the records, insofar as they relate to an "identifiable individual", contain personal information, including the names and telephone numbers of patients and persons who contacted the ambulance service, as well as information relating to medical treatment, and would thus be exempt from release under section 28(1). I find accordingly.

The records also contain the names of ambulance crews. Section 2(xii)(I) of the FOI Act specifically excludes from the definition of "personal information" for the purposes of section 28 of the Act:-

"in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid"

I am therefore satisfied that the names of ambulance crews, being members of staff of a public body,do not comprise personal information and should not be redacted pursuant to section 28(1) of the FOI Act. Similarly, I am satisfied that the elements of the records relating to the times of call-outs for the ambulances the time taken to attend at scenes, and the time taken rendering treatment do not constitute personal information and should not be redacted. I find accordingly.

It appears that the main issue in this review is the redaction of addresses of individuals contained in the records. The applicant accepts that to reveal the relevant townland in rural areas or street address in towns would allow for the individuals to be identified by inference, however he submits that addresses above that level would not have this effect. He argues that the post district in which he resides has a population of 40,000 and as such it would not be possible to identify an individual by reference to an address at that level. On the other hand, the HSE submits that only 45 calls were made to the ambulance service on the evening in question, and that there were 34 ambulance call-outs. The HSE therefore submits that the identity of the individuals in question may readily be inferred with a minimal level of local knowledge.

Having carefully considered the matter, I am satisfied that an address at the level of townland in rurual areas, or street address in towns, constitutes personal information is exempt under section 28(1) of the FOI Act. Specific directions set out in the records for the information of ambulance crews that could allow the exact address to be discerned also constitute personal information. However, I am of the view that the remaining information contained in the records subject to the redactions as set out earlier in this decision, including the addresses of third parties at the level above townland or street address, is not sufficiently specific as to make individuals identifiable, and thus does not constitute "personal information". Therefore, section 28(1) of the FOI Act does not apply to that information. I find accordingly.

There are some circumstances, provided for at section 28(2), in which the exemption at section 28(1) does not apply. Having examined the records in question, I am satisfied that none of the circumstances identified at section 28(2) arises in relation to them. I find, therefore, that section 28(2) does not apply in this case.

Having so found, it remains to consider whether this personal information should be released in the public interest. Section 28(5) of the FOI Act provides that a record that would otherwise be refused under section 28(1) of the Act may be released if it appears, on balance, that:-

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

(b) the grant of the information would be to the benefit of the person to whom the information relates."

Having regard to section 28(5)(b), it does not appear to me that there can be any benefit to the third parties arising out of the release of the records at issue. I therefore find that section 28(5)(b) does not apply in this case.

Some of the records contain information relating to third parties who had an involvement in the incidents in question, for example those who called the ambulance, individuals at the scenes of incidents or patients' medical practitioners. I find that the names of these individuals, and other information that might tend to identify them, is exempt personal information.
In relation section 28(1)(a), I refer to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner [2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"] in relation to the public interest. In the Rotunda Hospital case, the Supreme Court drew a distinction between private interests and public interests. While the comments are obiter, Fennelly J noted that the request in that case was "by a private individual for a private purpose. It was not made in the public interest." Macken J also commented that "any "public interest" would, in my view, require to be a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law".

In this case, the applicant seeks to invoke the public interest in openness, transparency and accountability in the healthcare sector, in particular in relation to the operations of the ambulance service. This Office has recognised that there is a very strong public interest in this area. In Case 030759 Dr X and the Midland Health Board, the former Commissioner stated:-

"The performance of our health service, and particularly of the public health service, is of fundamental importance. In principle, providing as much information as possible to the public about that service, and about how the various interests within the service interact, must be regarded as being in the public interest... In my view, there is a very strong public interest served in ensuring the greatest level of transparency possible in regard to the operation of the health service including the manner in which the various sectors within the health service interact."

On the other hand, the FOI Act itself recognises a public interest in protecting privacy rights. Both the language of section 28 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY") recognise this public interest. The right to privacy also has a constitutional dimension. Under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting the right to privacy. In my opinion, the public interest in protecting the right to privacy is a strong public interest.

In my view, as set out earlier in this decision, addresses above the level of townland or street address do not constitute personal information for the purposes of the Act, in circumstances where other exempt personal information, which would allow for individuals to be identified, will be redacted. However, even if I were to accept that addresses above the level of townland or street address constitute personal information under section 28(1) of the FOI Act, I am also of the view that, in the circumstances of this case, the public interest would, on balance, favour the release of those parts of the addresses falling above the level of townland or street address. In holding this view, I consider that the release of the records in this format would not disclose any personal information that might be described as intrinsically private. Rather, it would disclose nothing about an individual other than the fact that an ambulance was called and attended on a particular time and date.

In relation to the other categories of personal information contained in the records as detailed above, having considered the matter very carefully I find in this case that the public interest in openness, transparency and accountability in the healthcare sector does not outweigh the public interest that the right to privacy of the individuals to whom the information relates should be upheld. I am satisfied that the release of the records subject to redactions of personal information, as detailed above, strikes an appropriate balance between the public interest in openness, transparency and accountability and the privacy rights of third parties, and that, on balance, the public interest does not require the release of any further information.

Accordingly, I find that the HSE was not justified in refusing access to the records, apart from the information which I find to be exempt under section 28(1) as described above.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby annul the decision of HSE in this case and direct the release of the records, with appropriate redactions to personal information pursuant to section 28(1) of the Act.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator