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Case Number: 150384

Whether the HSE was justified in deciding to refuse access to parts of the applicant's file on the ground that the records are exempt from release under section 35 of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

By letter dated 6 August 2015, the applicant made an FOI request to the HSE for all records in respect of a hospital stay. On 24 September 2015, the HSE released some records in whole or part and refused access to the remaining records on the ground that they were exempt under section 37 (personal information) of the FOI Act. By letter dated 30 September 2015, the applicant applied for an internal review. On 22 October 2015, the HSE issued its internal review decision, in which it varied its original decision, releasing additional records and refusing access to the remaining records on the ground that they were exempt under section 37 of the FOI Act 2014. On 3 November 2015 the applicant applied to this Office for a review of the HSE's decision.
The applicant acted through his solicitor in his dealings with the HSE and this Office in this FOI request.
In reviewing this case I have had regard to the HSE's decision on the matter; the HSE's communications with this Office; the applicants' communications with this Office; communications between the applicant and the HSE on the matter; and the content of the withheld records provided to this Office by the HSE for the purposes of this review.

Scope of the Review

The applicant did not pay a fee in this matter, on the basis that he was satisfied that the information sought was personal information relating to him. This has consequences for my jurisdiction in this review. In the circumstances, section 27(13)(b) of the FOI Act and the Freedom of Information Act 2014 (Fees) (No. 2) Regulations 2014 require the Commissioner to refuse to accept an application for an FOI review unless the records contain only personal information relating to the applicant.
Accordingly, the scope of this review excludes records which contain personal information relating to people other than the applicant. This Office explained the position to the applicant by letter dated 10 December 2015. I have reviewed the records and had regard to the definition of "personal information" under section 2 of the FOI Act. I consider that the majority of the records contain personal information relating to people other than the applicant and therefore fall outside the scope of this review.
However, I am satisfied that the following records fall within the scope of this review: 13, 60, 67, 91, 92, 144 and 154. During this review, the HSE clarified that it claims section 35 (confidentiality) in respect of these records. Therefore, the question for me is whether the Council is justified in refusing access to these records under section 35 of the FOI Act.

Preliminary Matters
Before I consider the exemption claimed, I wish to make two points.

First, section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the HSE to satisfy me that its decision is justified.

Secondly, section 37(2)(a) of the FOI Act disapplies section 37(1) where the information concerned relates to the requester concerned. Therefore, as all of the information within the scope of this review relate to the applicant, I am not required to consider section 37(1) of the FOI Act.

Analysis and Findings

Section 35 - Confidentiality

The HSE claims this exemption in respect of all the records within the scope of this review.

Section 35(1) and (2) of the FOI Act provides:

"(1) Subject to this section, a head shall refuse to grant an FOI request if -

(a) the record concerned contains information given to an FOI body, in confidence and on the understanding that it would be treated as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or

(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law.

(2) Subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, an FOI body or a service provider) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider.".

Section 35(1) does not generally apply where a record is prepared by a member of staff of an FOI body or a service provider, unless disclosure would constitute a breach of a duty of confidence which is owed to a person other than an FOI body, a member of staff of an FOI body or service provider.

The HSE submits that: the information contained in these records is information clearly provided to treating clinicians in confidence; patient confidentiality is central to its decision; it is standard practice to exclude third party service provider details from release; and the names and details of all staff members are provided.

The HSE has not pointed this Office to a legal basis for section 35(1)(b) to apply, such as an agreement or enactment or any other duty of confidence provided for by law. Therefore it has not satisfied me that there is a basis on which to make a finding under section 35(1)(b).

In relation to section 35(1)(a), I will examine the withheld records in light of that exemption. I note that some of these records were prepared by staff members of the HSE and some by others.

Records 13, 91 and 92

The redactions in these records consist of the name of a company and product used by the applicant. Having regard to the content of these redactions and the released part of these records, I do not consider that the redactions are of themselves information given in confidence. I cannot see how any of the conditions set out in section 35(1)(a) are met in relation to this information. I do not consider the fact that it is the HSE's standard practice to exclude third party names to be relevant to the applicability of section 35(1)(a). I find that section 35(1)(a) does not apply to this information.

Insofar as the fact that the applicant uses this company and product may be personal information relating to the applicant, as noted above, in the circumstances section 37(2) disapplies section 37(1).

Records 60 and 67

The redactions in these records consist of a few sentences referring to staff members of the HSE. I note that the HSE's submissions acknowledge that it has disclosed the names of staff members elsewhere and I do not accept that the redacted information qualifies as information given in confidence to the HSE. In any case, section 35(2) would apply to such information in these records prepared by hospital staff. I find that section 35(1)(a) does not apply to them.

Records 144 and 154

The redactions in these records refer to the "Garda" (no name). The basis on which the HSE claims that these particular references constitute information given in confidence to it is not clear from its submissions. I find that section 35(1)(a) does not apply to these records.

Accordingly, I find that the HSE is not justified in refusing access to these records under section 35(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE's decision to refuse access to records 13, 60, 67, 91, 92, 144 and 154 and direct their release.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court
by a party to a review, or any other person affected by the decision. In summary, such
an appeal, normally on a point of law, must be initiated not later than four weeks after
notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator