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Whether the HSE was justified in refusing access to records and parts of records relating to complaints about the applicant and her risk assessment

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

Background

On 18 November 2013, the applicant made an FOI request, on an official form headed "Health Service Executive West", for

1. Details of any complaints/allegations made about her from 2009 up to and including 18 November 2013 by eight named persons, including any information about an incident when she said one of the named persons threatened to kill her;
2. Records relating to a particular anonymous complaint about her and her sister, of which the applicant said she had become aware when her sister viewed her file (she said her sister had consented to her personal information being shared with the applicant);
3. Records relating to a particular complaint from a professional from a community organisation, whom the applicant said had refused to meet her as the professional concerned was "afraid"; and
4. All records about a risk assessment she had recently been told would be conducted on her (in relation to which she said she had sent reports, statements, cctv footage etc. to the relevant unit ).

The HSE's decision of 9 December 2013 told the applicant that it was granting her request in part. It provided her with a schedule of the records in the two files it had considered relevant to the request, which indicated that it was partially releasing record 73 on File 1 and records 1-5, 17, 41-42, 47, 49 and 65 on File 2, and withholding in full records 14, 44-45 and 48 on File 2. It considered that section 28 applied to exempt the withheld information.

The applicant sought an internal review of the HSE's decision on 13 December 2013. She disputed the accuracy of certain comments in the records released to her (which I accept was not a matter that the HSE had remit to consider in its internal review in this case). She also disputed the HSE's refusal of the various details it had withheld from Files 1 and 2, and suggested that the HSE had not examined all files containing relevant records.

On 10 February 2014, the internal reviewer varied the HSE's earlier decision, although this was not particularly clear from his letter to the applicant. From the HSE's schedule of relevant records, it appears that the internal reviewer upheld the partial release of records 1-5, 17, 47, and 49 on File 2 and the full release of records 41-42 and 65 on File 2. It seems that he also upheld the full refusal of records 14 and 48 and decided to partially release records 44-45- all of which were on File 2. The Schedule did not refer to record 73 on File 1. The information was withheld under sections 26 and 28, with certain records withheld on the basis that they were personnel records to which section 6(6)(a) of the FOI Act applied. The schedule also referred to a "document not included in original schedule of records (complaints from named foster carers)", which was said not to exist and to which section 10(1)(a) thus applied.

On 17 February 2014, the applicant made a request to this Office for a review of the HSE's decision.

During the course of the review, the HSE conducted further searches for relevant records. It located an additional file, to which I will refer as "File 3" and partially released its contents. It also located, on other files, three further signed letters of complaint about the applicant, which it refused to release; an internal email summarising a verbal complaint made about the applicant, which it was willing to release in full; and an anonymous hand-written complaint, a version of which it was willing to release to the applicant in typed format so as to not to reveal the author's identity through his or her handwriting. It also confirmed that the 81 pages on the applicant's risk assessment file, which were considered for release only when the applicant made a fresh request to National Recruitment Services in April 2014, had been released except for pages 1 and 49, which it had partially released.

Ms Anne Lyons, Investigator, wrote to the applicant on 6 February 2015, explaining why she considered that the HSE had conducted reasonable searches for further records of relevance to the request, and had justified its refusal of the located but withheld records. In response, the applicant disputed the latter view in particular. Accordingly, I must now conclude this review by way of a final, binding, decision.

In carrying out my review, I have had regard to copies of the records at issue (in their original form and as redacted) which were provided to this Office for the purposes of this review and to correspondence between this Office, the HSE and the applicant. I have had regard also 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

This review is confined to two issues. It will consider whether the HSE has justified its refusal of further records relevant to the request under section 10(1)(a), and whether it has justified its refusal of access to those records it has located, which it has fully or partially withheld under section 28 of the FOI Act i.e.

• the withheld elements of record 73 on File 1, records 1-5, 17, 47, and 49 on File 2, and records 1 and 49 on the applicant's risk assessment file;
• records 14, 44-45, and 48 on File 2 in full;
• the material withheld from File 3 and
• the three further signed letters of complaint about the applicant, and the original version of the anonymous hand-written complaint released to the applicant in typed format.

I am considering records 44-45 on File 2 in their entirety. The reason for this is that, although the schedule to the internal review decision indicated partial release, it seems to me, based on the files and copies of records provided by the HSE, that they were, in fact, fully withheld. I note also that this Office's contacts with the applicant were on the basis that records 44-45 on File 2 had been fully withheld, and that the applicant has not suggested otherwise.

I will also explain why I am considering the details withheld from records 1 and 49 on the applicant's risk assessment file. As the relevant element of the applicant's FOI request was not referred to, or decided on, in either the HSE's original or internal review decision, the HSE is deemed by the FOI Act to have refused access to the records concerned. Such deemed refusals are subject to review by this Office. I do not consider it to have been appropriate for the HSE to have told the applicant to make a fresh FOI request for her risk assessment records. The HSE is a single public body and I consider that the HSE West ought to have passed the relevant part of the FOI request to its National Recruitment Services which held those records. Be that as it may, the HSE released all relevant records - except for records 1 and 49 which it released in part - further to the applicant's fresh FOI request to the National Recruitment Services- and I will consider the withheld parts in this review.

Findings

Preliminary Matters
At the outset, it is relevant to note a number of preliminary matters. This Office has no remit to investigate complaints, to examine the appropriateness of the HSE's procedures either in general or as applied to a specific situation, or to act as an alternative dispute resolution mechanism with respect to actions taken by public bodies.

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 my satisfaction that its decision was justified. Although I am obliged to give reasons for my decision, section 43(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Section 8(4) of the FOI Act does not allow this review to have regard to any reasons as to why the applicant is seeking the withheld records (although such reasons may be relevant to consideration of the public interest). Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Records Outside the Scope of the Review
The details withheld from page 73 on file 1 pertain to the appointment of various staff other than the applicant, while those withheld from records 1-5 on file 2 concern leave arrangements of other staff. The details withheld from record 1 on the risk assessment file identify staff other than the applicant who were subject to risk assessments. These details are not covered by the applicant's FOI request and I will not deal with them in this review.

The applicant's request was dated 18 November 2013 and, according to the date stamp on the copy of that request as supplied to this Office, was received by the HSE on that date. Therefore, the applicant's request only covers records created by the HSE up to 18 November 2013. The partially released record 49 on the applicant's risk assessment file contains a series of emails from February 2014. In addition, it is evident from an examination of the records in "File 3" that all except one (i.e. a record concerning a meeting held on 14 November 2013) were created after 18 November 2013, while the HSE has said that the record of the 14 November 2013 meeting was created "some time", "perhaps a month", after the meeting concerned.

Records created after the date of any FOI request must be sought under a fresh FOI request, which is subject to the usual rights of internal and external review. While it was open to the HSE in this case to release to the applicant records created after her request, I have no remit to consider, or direct the release of records such as record 49 and those withheld from File 3.

Adequacy of Searches
It is the HSE's position that it cannot locate any further records relevant to the applicant's request. It is effectively relying on section 10(1)(a) of the FOI Act, which provides that a request for access to a record may be refused if the record does not exist, or if searches for a record that is known to exist (but cannot be found) have been reasonable.

A review of a public body's refusal of records under section 10(1)(a) assesses whether or not it is justified in claiming that it has taken reasonable steps to locate all records of relevance to a request, or that a record does not exist. It is not normally this Office's function to search for records. The Commissioner's approach in search cases was upheld in a decision of the High Court in the case of Matthew Ryan & Kathleen Ryan and the Information Commissioner (2002 No. 18 MCA). I should explain that in any case involving section 10(1)(a) of the FOI Act, a decision from this Office may find that a public body has conducted reasonable searches, even where records that are known to exist cannot be found. In such circumstances this Office is unlikely to require a public body to continue searching indefinitely for those records.

I note that Ms Lyons, in her letter of 6 February 2015, provided the applicant with details of the various searches carried out for records relevant to parts 1 to 3 of her request. She also explained why it is the HSE's position that it cannot locate any records encompassed by part 4 of the applicant's request other than those already considered for release. While I do not intend to repeat the details here, they are relevant for the purposes of this decision. I note, in particular, the HSE's explanation that when it asked the official who, according to record 38 on File 2, was to document details of an anonymous complaint that she had received about the applicant, she said she did not recall documenting any verbal or other complaints about the applicant.

In addition, the HSE has since confirmed that it conducted a further examination of the applicant's sister's file and was unable to locate any records concerning the anonymous complaint that the applicant had described as being on this file.

It appears, from the applicant's submissions, that her main concern is ensuring that she has a right to reply to any information in the records at issue. However, she also refers to a minute of a meeting with two named staff in November 2013, which she said was provided to her under the grievance procedure and not under FOI. It seems to me that the record concerned is that on File 3, relating to a meeting of 14 November 2013 and which I have found to be outside of the scope of this review due to the HSE's explanation as to when it was created.

Having reviewed the steps taken by the HSE to find further records covered by parts 1-3 of the request and its explanation of why it cannot locate any records relevant to part 4 of the request, I find that it is justified in its effective reliance on section 10(1)(a) of the FOI Act.

Fully or Partially Withheld Records
The HSE relied on section 28 of the FOI Act to refuse access to records and parts of records. Section 28(5B), subject to other provisions of section 28, provides for the mandatory refusal of a record that contains the personal information of the person making the FOI request and that of another party or parties.

I cannot go into detail about the nature of the information at issue, due to the requirements of section 43(3) of the FOI Act. However, I can say that much of the information comes within the definition of "personal information" as set out in section 2 of the FOI Act. I am satisfied that the details withheld from records 17, 47, and 49 are the names of persons who complained to the HSE about the applicant. Records 14, 44 - 45, and 48 on File 2 contain details of the complaints made by those identifiable parties, the context of which I am satisfied would identify the complainants concerned, as would the signatures to records 44-45. I also consider that the signatures to the three recently located signed letters of complaint, as well as the details in the letters, would disclose the identity of the relevant complainants. Finally, I also accept that disclosure of the hand-writing of the author of the anonymous complaint letter could lead to the identification of the particular complainant.

Accordingly, I consider the withheld material to comprise personal information about the applicant that is inextricably linked to the personal information of the various complainants i.e. the joint personal information of all parties concerned. I am satisfied also that it is not possible to extract, and direct the release of, any details that relate solely to the applicant. Thus, I find that, subject to my examination of section 28(2) and section 28(5) below, the withheld details are, on the face of it, exempt under section 28(5B) of the FOI Act.

Section 28(2)
There are some circumstances, provided for at section 28(2), in which the exemption at section 28(5B) does not apply. Having examined the withheld details, I am satisfied that none of the circumstances identified at section 28(2) arise in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of their information; (c) that the information is not of a kind that is available to the general public; (d) 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 (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. As regards (a) to (d), no argument to the contrary has been made by the applicant. Even if it had been argued that certain records had been provided to the applicant through processes separate to FOI, this would not entitle her to the same records under, say, sections 28(2)(c) or (d) of the FOI Act. As regards (e), while I note the applicant's references to what she describes as "ongoing risks to [her] family and [herself]" and the "vulnerable" position she is in, I do not consider such assertions to be an adequate basis on which to direct release of third party information under section 28(2)(e) of the FOI Act. I find accordingly.

Section 28(5)(a) - The Public Interest
Section 28(5) provides that a record, which is otherwise exempt under section 28(5B), may be released in certain limited circumstances. The effect of section 28(5)(a) is that a record, which has been found to be exempt under section 28(5B), may be released if it can be demonstrated that "on balance, 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".

The July 2011 Supreme Court judgment, in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner,[2011] 1 IR 729, [2011] IESC 26), ("The Rotunda case") 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. Thus, in considering section 28(5)(a), I must distinguish private interests from "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. "

There is a general public interest in ensuring that persons can exercise their rights under the FOI Act. Furthermore, the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, 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 un-enumerated personal rights under the Constitution). Accordingly, 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.

The applicant maintains that the HSE is guaranteeing anonymity to third parties, whom she contends are making malicious referrals, to encourage further such complaints. Essentially, she contends that she has been deprived of a right to fair procedure because she does not know exactly what was said about her and by whom. She argues that she is being deprived of a right to reply to the allegations concerned, which she says have long term implications for her career, and that she wishes to have an opportunity to correct inaccurate information.

It is not this Office's role to determine whether the complaints made to the HSE about the applicant are malicious or otherwise. However, the Commissioner considers that false or unproven information supplied to a public body could well comprise personal information, given the context in which the information was provided to the body. Mindful of section 43(3), I am satisfied that, even if the details in the records at issue in this case had been established to be false or malicious, they still comprise joint personal information about the various parties referred to in them.

The applicant's arguments are largely based on what I consider to be her own private interests, to which I cannot have regard in making my decision in this review. As already explained, it is not within this Office's remit to determine if the HSE's procedures for dealing with complaints in general are appropriate, or if it complied with the requirements of fair procedure when it received the complaints about the applicant. In other words, it is not open to me to determine that the details at issue should be provided to the applicant now, in the public interest under section 28(5)(a) of the FOI Act, simply because the HSE might not have made her aware of all the salient details, or because it treats complaints, such as those at issue, confidentially. As the Commissioner has said in his composite decision in cases 090261/090262/090263 (Mr X and the Health Service Executive & Our Lady's Hospital for Sick Children - available on www.oic.ie) ), "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."

As applied here, this means that there is a strong public interest in revealing whether the HSE carried out its functions in a manner that was consistent with the principles of natural and constitutional justice as well as the right to privacy. I do not consider it possible to make such an assessment from the details in the records at issue, however. They set out the experiences, perceptions and private affairs of the various third parties to whom the records also relate, as opposed to revealing how the HSE dealt with the complaints at issue. Thus, release of personal information of parties other than the applicant, effectively to the world at large, would result in a significant breach of the Constitutional rights to privacy of the third parties concerned, with little or no resulting insight to be gained into the operations of the HSE. Having carefully weighed the competing public interest factors in favour of and against release, in the circumstances of this case I consider that, on balance, the public interest that the right to privacy of the third party individuals to whom the information relates should be upheld outweighs the public interest that the request should be granted.

I find accordingly.

Section 28(5)(b) - Benefit to individuals
The effect of section 28(5)(b) is that a record, which has been found to be exempt under section 28(5B), may still be released if it can be demonstrated that the grant of the request would benefit the third party or parties whose personal information is also contained in the records. This does not enable me to direct the release of the information at issue if such release would be of benefit to the applicant, as she has suggested.

I am not satisfied that release of the details at issue would be of benefit to the various third parties whose personal information is in the records, nor am I otherwise aware of any reason to think that this would be the case. I find that no right of access arises further to the provisions of section 28(5)(b) of the FOI Act.

Section 26
Given my finding that section 28(5B) applies in this case, there is no need for me to consider the HSE's application of this provision of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the HSE's refusal of access to the records at issue under sections 10(1)(a) and 28(5B) 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.

Elizabeth Dolan
Senior Investigator