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Whether the HSE was justified in its decision to refuse access to a letter of complaint about the applicant on the basis that it is exempt from release under sections 26(1)(a) and 28(1) 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

The applicant made a request to the HSE on 14 November 2013 for access to a letter of complaint about her sent to her employer. In its decision of 29 January 2014 the HSE refused the applicant's request on the basis of sections 26 and 28 of the FOI Act. The applicant applied for internal review of that decision on 11 February 2014. In its internal review decision of 26 March 2014 the HSE affirmed its original decision.

The applicant applied to this Office on 24 September 2014 for a review of the HSE's decision. In conducting this review, I have had regard to correspondence between this Office and both the applicant and the HSE, and to the correspondence between the applicant and the HSE on the matter. I have also had regard to the contents of the record sought, a copy of which was provided to this Office by the HSE for the purposes of this review.

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the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.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 Review

This review is concerned solely with the question of whether the HSE was justified in its decision to refuse access to the withheld record identified above on the basis that it is exempt from release under the Act.

Preliminary Matters

Section 8(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the record in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the record.

I also wish to make the point that, while I am required by section 34(10) of the Act to give reasons for decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions during 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 record at issue or its contents is limited.

Finally, I should explain that while section 13 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 only where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 13 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Analysis and Findings

While the HSE has refused access to the record under sections 26 and 28, I will address the claim for exemption under section 28 first as I believe it to be of most relevance.

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 relating to an individual other than the requester. Furthermore, section 28(5B) provides that a public body shall refuse to grant a request if 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, commonly referred to as joint personal information.

The record at issue in this case comprises a letter of complaint about the applicant submitted to the applicant's employer. Having regard to the definition of personal information as set out in section 2 of the Act, I am satisfied that the information contained in the letter comprises personal information relating to a third party or parties and also personal information relating jointly to the applicant and a third party. Accordingly, I find that sections 28(1) and 28(5A) apply.

Under Section 28(2) there are some circumstances in which the exemption for personal information under section 28 does not apply. Having examined the withheld record, I am satisfied that none of those circumstances arise in this case. That is to say, (a) that the third parties have not consented to the release of their information; (b) that the information is not of a kind that is available to the general public; (c) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (d) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 28(5) of the Act also provides for the release of information to which sections 28(1) and 28(5A) apply, namely where

(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.

I am satisfied that the release of the record would not be to the benefit of the third party or parties in question and that section 28(5)(b) does not apply.

On the matter of whether section 28(5)(a) applies, the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, 'a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law' must be distinguished from a private interest for the purpose of section 28(5)(a).

The Long Title of the FOI Act reflects that there is a general public interest in openness and transparency with respect to information held by public bodies, provided that it is consistent with the right to privacy. There is also a strong public interest in openness and accountability in relation to the manner in which public bodies carry out their functions. In my view, the public interest in openness, transparency and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies.

On the other hand, the language of section 28 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the unenumerated personal rights under the Constitution). When considering section 28(5)(a), privacy rights will 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 privacy.

In this case, the HSE stated that the substance of the complaint made against the applicant was disclosed to the applicant in the course of meetings held to address the matters complained of. In my view, this goes some way towards serving the public interest in openness, transparency and accountability. The question I must consider is whether the release of the record sought would further serve that public interest to the extent that it would outweigh the privacy rights of the third party or parties about whom the information relates. I am satisfied that it does not. Accordingly, I find that section 28(5)(a) does not apply.

I find, therefore, that the HSE was justified in refusing access to the record at issue under section 28 of the FOI Act.

Having so found, it is not necessary for me to consider whether the record is also exempt from release under section 26, although I do not believe that such a claim would be sustainable in so far as the information in the record comprising allegations about the applicant is concerned. It seems to me that in providing such information to the HSE, the complainant would have expected the HSE to act on that information and could not, therefore, have expected it to remain confidential vis-a-vis the applicant. Nevertheless, as I have found section 28 to apply, I do not find it necessary to make a finding on the claim for exemption under section 26.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby affirm the HSE's decision to refuse access to the record requested in accordance with sections 26 and 28 of the FOI 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