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Case Number: 160295

Whether the Agency was justified in partially refusing the applicant's request for access to certain social work records in relation to her children on the basis of sections 35 and/or 37 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 24 September 2015, the applicant made an FOI request addressed to the HSE for access to notes of strategy meetings held in relation to her three children at a named family centre. The applicant specified the dates of four such meetings. She stated that further strategy meetings may have taken place. On 27 October 2015, the Agency granted partial access to the records requested. The applicant requested an internal review of this decision. On 21 December 2015, the Agency varied its original decision and released additional information to the applicant.

The applicant made a further FOI request to the Agency following receipt of this decision in December 2015. She requested copies of handwritten notes taken at the strategy meetings. She also requested the rest of the records held by the family centre relating to her daughter. On 4 April 2016, the Agency granted partial release of the family centre file records relating to the applicant's daughter. In her internal review request, the applicant sought copies of the full strategy meeting notes including circulated minutes, action items and the circulation list for the meetings.

On 30 May 2016, the Agency issued its internal review decision. The Internal Reviewer examined only those pages from the family centre file which he felt were relevant i.e. those relating to strategy meetings. The Internal Reviewer released additional information contained in notes of eight strategy meetings to the applicant. A small amount of information contained in the notes was withheld on the basis that the Agency said it is confidential and/or personal information of parties other the applicant. Handwritten versions of seven strategy meeting notes were also released.

On 23 June 2016, the applicant applied to this Office for a review of the decisions made on 21 December 2015, and 30 May 2016, in regard to the strategy meeting records. This Office refused to accept the application for review in relation to the decision of 21 December 2015, since the application was outside the six month period provided for in section 22(4)(b) of the FOI Act 2014. The application for a review of the decision made on 30 May 2016, was accepted.

I have decided to conclude this review by issuing a formal binding decision. In conducting this review, I have had regard to correspondence between the applicant and the Agency, to correspondence between the Agency and this Office, to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the FOI Act.

Scope of Review

I am satisfied that, having considered the applicant's internal review request, the Internal Reviewer was entitled to confine his review to strategy meeting notes. The scope of this review will be confined to reviewing whether the Agency was justified on the basis of sections 35 and/or 37 of the Act, in withholding information contained in notes of strategy meetings which took place on the following eight dates: (1) 28 August 2014, (2) 30 October 2014, (3) 4 December 2014, (4) 8 January 2015, (5) 11 February 2015, (6) 22 April 2015, (7) 28 May 2015 and (8) 29 June 2015.

Preliminary Matters
Before dealing with the relevant exemptions, there are some preliminary points I wish to make. The first point to note is that, under section 13(4) of the FOI Act, the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner, (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).

The second point has to do with the extent to which it is feasible to provide access to parts of records while refusing access to the remaining parts. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 18 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 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(12)(b) of the FOI Act provides that a decision to refuse a request 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 Agency to satisfy the Commissioner that its decision to refuse access to the records was justified.

Finally, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in 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 records at issue and the material that I can refer to in the analysis is limited.

Analysis and Findings

The purpose of the eight strategy meetings was to discuss concerns in relation to the applicant's children. The meetings were attended by both social workers and Gardaí. I consider that section 37, which is a mandatory exemption, is the most appropriate exemption to examine given the extent of personal information that appears in the records.

Section 37(1) and 37(7) - 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 relating to an individual other than the requester. 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) provides for the refusal of a request for information which, if released, would result in the disclosure of personal information about other parties as well as about the requester.

Section 2 of the FOI Act defines "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to list fourteen categories of personal information including the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual. Also listed under the definition of personal information is information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual.

Section 2 states that the definition of personal information does not include the name of the individual in a case where the individual holds or held a position as a member of staff of an FOI Body, or any other position, remunerated from public funds. In most cases, where the names of public servants carrying out their functions as social workers or Gardaí are contained in the records, the Agency has released these, except where such names appear in sentences or paragraphs otherwise found to be exempt. I agree that to release the name in isolation from the context of the sentence or paragraph would be misleading and is not required by the Act (section 18 refers). However, in one instance, information withheld from record 4 (notes of strategy meeting of 11/02/2015) includes the name of a social worker. Having regard to the definition of personal information provided for in section 2, I find that this information is not exempt under section 37(1) of the Act and should be released to the applicant.

I am satisfied that none of the withheld parts of records 1-8 contain information which is personal information relating solely to the applicant. The information withheld is either the personal information of third parties or personal information relating to the applicant and/or her children which is intertwined with the personal information of third parties. It may well be the case that a considerable amount of the withheld information is generally known to the applicant. Nevertheless, I must consider that when a record is released under the FOI Act, this, in effect, amounts to disclosure to "the world at large", as the Act places no restriction on the subsequent uses to which the record may be put. I find that, with the exception of the name of a social worker where it appears twice in record 4 (notes of strategy meeting of 11/02/2015), sections 37(1) and /or 37(7) of the Act apply to the remainder of the information withheld from records 1-8.

Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. For the purposes of this review, and with reference to those circumstances, I am satisfied that, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) 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) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5) - the Public Interest
Section 37(5) of the FOI Act provides that a request that 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 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 do not consider that the release of the information at issue would benefit the third parties to whom it relates, as envisaged by section 37(5)(b) of the Act.

In considering the public interest test at section 37(5)(a), 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 (available at www.oic.ie). In its judgment, the Supreme Court 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 37(5)(a).

In relation to section 37(5)(a), the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. On the other hand, however, the language of section 37 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, privacy rights will be set aside only where the public interest served by granting the request is sufficiently strong to outweigh the public interest in protecting privacy.

In her application to this Office, the applicant is critical of the manner in which the Agency performed its functions in this case. She argues that disclosures made by Gardaí to the Agency should be released.

It is important to note that it is outside the remit of the Information Commissioner to carry out any investigation or make any findings on how a public body carried out its duties in the circumstances surrounding a review; rather, the Commissioner's role is to determine whether or not records or information contained in records was properly withheld. There is a public interest in openness and transparency in the manner in which a public body performs its functions. However, I am of the opinion that this has been met to a large degree by the release of the majority of the information contained in records at issue. I do not consider that the public interest in the release of withheld information in this instance outweighs, on balance, the significant public interest in protecting the privacy rights of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply to the information withheld from records 1-8.

Section 37(8) - Access to the personal information of minors
Section 37(8)(a) provides that, notwithstanding subsection (1), the Minister for Finance may provide by regulations for the grant of access where the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual. The FOI Act 1997 (Section 28(6)) Regulations, 2009 (S.I. No. 387 of 2009) were continued in force by section 54(2) and Schedule 5 of the FOI Act 2014. The Regulations make provision for access to personal information of minors in certain circumstances e.g. where access would be in the child's best interests. I assume that, in releasing to the applicant certain information about the children in the records, the Agency took the view that the 2009 Regulations applied.

In the particular circumstances of this case, I have considered whether there is any remaining information in the records, not otherwise found to be exempt from release under sections 37(1) or 37(7), to which the provisions of section 37(8) would apply, i.e. is there any further personal information of the applicant's children, which could possibly be considered for release under this provision. Taking into consideration the position as regards sections 18 and 37(5) as set out above, I am satisfied that any remaining information in the records about the applicant's children is so intertwined with the personal information of other individuals that it would be impractical to isolate it for release in any manner which would not make the information misleading. Accordingly, I see no need to consider this in further detail.

Finally, in her application to this Office, the applicant raised the issue of whether information provided by public servants in the course of the performance of their duties should be treated as confidential. However, as I am satisfied that the information withheld from records 1-8 is exempt under section 37(1) and/or section 37(7) (with the exception of the name of a Social Worker identified above); it is not necessary for me to consider whether this information is also exempt under section 35(1)(a) of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Agency. I affirm its decision in relation to records partially withheld under section 37(1) and/or 37(7) of the Act, with the exception of the name of a Social Worker identified above which I direct be released to the applicant.

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator