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Case Number: 160120

Whether the HSE was justified in its decision to refuse access to records/parts of records concerning the applicant on the basis of section 37(1) and section 35(1)(a) 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

On 16 July 2015, the applicant made an FOI request to the HSE seeking access to his medical records and/or any copy of Garda enquiries/statements held by [a named hospital]. On 12 October 2015 the applicant made a second FOI request for access to "a copy of records of Garda enquiries during their investigation into the death of a (named person)". The HSE dealt with both requests together and issued a decision on 6 November 2015 partially granting the request. It considered records in two volumes of files; the first volume consisted of 139 records and the second volume consisted of 367 records. The majority of these records were released. The HSE refused access to records/portions of records on the basis of sections 35(1)(a) and 37(1) of the FOI Act as identified on the schedule provided to the applicant. The HSE issued an internal review request affirming the original decision on 23 December 2015.

On 15 March 2016, this Office received an application from the applicant seeking a review of the HSE's decision.

Submissions were requested from the HSE and the applicant. The HSE responded stating that it would not be making a submission, a submission was received from the applicant. I consider that the review should now be finalised by way of a formal, binding decision.

In conducting my review I have had regard to the submission and application from the applicant and to correspondence between the applicant and the HSE. I have examined the contents of records provided to this Office for the purposes of this review and had regard to the provisions of the FOI Act.

 

Scope of the Review

This review is concerned solely with whether the HSE was justified in its decision to refuse access to records/portions of records under sections 37(1) and 35(1)(a) of the FOI Act as identified on the schedule provided to the applicant.

Analysis and Findings

Preliminary Matters

Section 18
Firstly I should draw attention to section 18 of the FOI Act which 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 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 18 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.

Section 22
It is relevant to note that section 22(12)(b) of the FOI Act provides that a decision to refuse a request under section 12 shall be presumed not to have been justified unless the head of the FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the HSE to satisfy the Commissioner that its decision to refuse access to the records was justified.

Section 37 - Personal Information

Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. In a situation where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information about another party (or parties), and where it is not feasible to separate the personal information from that relating to the other party (or parties), it can be described as joint personal information. Section 37(7) further provides for the refusal of a request where the body considers that access to the record 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 other than the requester. The FOI Act defines the term "personal information" as information about an identifiable individual that either (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 an FOI body on the understanding that it would be treated by the body as confidential. Section 2 of the Act details fourteen specific categories of information which is personal information without prejudice to the generality of (a) and (b) above.

The records in this case are the applicant's mental health services records for the period from 2002 to 2015. In his submission to this Office, the applicant stated that the HSE allowed the Gardaí access to his medical records and that it should not have given anyone access to his records. However, I note that included in the records is a note of consent, signed by the applicant and witnessed by his mother, for the release of his medical records to the Gardaí. These records were released to the applicant.

Having examined the records, I note that the information redacted by the HSE refers to (1) persons other than the applicant, including third parties such as the family members of the applicant and (2) the applicant and those third parties. It seems to me that, given their context and content, none of the withheld records within the scope of this review contain information which is personal information relating solely to the applicant. In considering this aspect, I have taken account of section 18 of the FOI Act as referred to earlier in this decision. On that basis, I find that the redacted parts of the withheld records, as identified on the schedule provided to the applicant, are exempt from release on the basis of section 37(1) and section 37(7) subject to the provisions of section 37(2) and section 37(5) which I examine below.

Section 37(2) and section 37(5)
There are some circumstances, provided for at section 37(2) of the FOI Act, in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) (a), (b), (c), (d), or (e) arise in this case. In particular, I do not consider that it is appropriate to seek the consent of the individuals concerned to release of their information. Consequently, I find that section 37(2) does not apply to the details at issue here.

Section 37(5) of the FOI Act provides that a request which would fall to be refused under section 37(1), may still be granted where, 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 concerned. In my view, the grant of the request would not benefit the individuals to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.

 

The Public Interest

Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. In relation to the question of where the public interest lies, I have had regard 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 the Rotunda Hospital case, the Supreme Court drew a distinction between private interests and public interests. The comments of Fennelly J. indicate that a request made "by a private individual for a private purpose" is not a request "made in the public interest". Moreover, in the opinion of Macken J., the public interest would require "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law".

The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. To a large extent, this public interest has been served by the release of the substantive records albeit with a small number of redactions. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights in the language of section 37. It is also worth noting that the right to privacy also has a Constitutional dimension as one of the unenumerated personal rights under the Constitution. 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 privacy. I find that, in the circumstances of this case, the right to privacy of the third parties whose personal information is in the records outweighs the public interest in granting the applicant's request.

In summary, I find that sections 37(1) and 37(7) apply and that none of the exceptions under section 37 apply to the information.

In light of my findings that the withheld records are exempt under section 37, I do not consider it necessary to examine the HSE's claims for exemption under section 35(1)(a) of the FOI Act.

 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the HSE to refuse access to the withheld records.

 

 

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