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Case Number: 170286

Whether the HSE was justified in refusing to fully grant the applicant's request for records concerning his minor son

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 22 January 2017, the HSE received the applicant's FOI request for access, by way of copies and inspection, to various records relating to his son's treatment by "Primary Care Clinical Services". The HSE's decision of 6 April 2017 told the applicant it was granting access to some records, in full and in part, but was withholding the rest under various exemptions in the FOI Act. The applicant sought an internal review of this decision on 2 May 2017. The HSE's internal review decision did not issue within the statutory timeframe, which meant that it effectively affirmed its earlier decision on the applicant's request. On 6 June 2017, the applicant sought a review by this Office of the HSE's decision. On 8 June 2017, the HSE wrote to the applicant in relation to his internal review application, granting access to some further records, but affirming its refusal to grant access to the rest, again citing various provisions of the FOI Act.

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above; and to correspondence between this Office, the HSE, and the applicant. Although invited to, the applicant did not make any submissions to this Office. I have had regard also to the records considered by the HSE and to the provisions of the FOI Act.

Scope of the Review

As the applicant knows, this review is confined to whether the HSE has justified its refusal to grant full access to those records it has fully or partially withheld:

Records 2; 7-8; 9; 10; 11-13; 15; 21; 23; 24-26; 28; 33; 46; 47; 52 (including 52a); 53 (including 53a); 56-57a; 58-60; 61-71a; 72; 74; 75; 78; 80; 112; 113-114; 115; 116; 117; 118; 120; 121; and 123.

For completeness, because the applicant did not reply to this Office's request to confirm whether he wanted record 34 (a record that appears to be in his possession) included in the review, I have not considered this record further.

I cannot take into account any dissatisfaction the applicant may have with how the HSE dealt with his FOI request and/or internal review application.

Findings

Section 37(1)
While I cannot disclose the contents of the records, I am satisfied that they all contain sensitive personal information. I am satisfied that the information withheld from the following records is (i) personal information about third parties other than the applicant and his minor son the subject of his FOI request (the applicant's minor son), or (ii) personal information concerning third parties that is inextricably linked to personal information about the applicant and/or his minor son:

Records 2; 7-8; 9; 10; 11-13; 15; 21; 23; 24-26; 28; 33; 46; 47; 52 (including 52a); 53 (including 53a); 72; 74; 75; 112; 113-114; 115; 116; 117; 118; 120; 121; and 123.

Furthermore, while the HSE initially withheld records 56-57a; 58-60; and 61-71a (which are specialised tests conducted by or on behalf of the HSE for diagnostic purposes) on the basis that granting access to them would infringe copyright, I note that some elements of these records also relate to individuals other than the applicant and/or his minor son. I am satisfied that records 59-59a, and 61-62a also contain personal information about third parties that is inextricably linked to personal information about the applicant's minor son.

Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). While the HSE has released details from certain records while redacting other parts, this Office takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs. I do not consider it practicable to direct release of any further excerpts from the above, which refer to the applicant and/or his son alone. Furthermore, I accept that doing so would lead to the resulting copies of the records being misleading.

The fact that the applicant may be aware of the contents of some of the withheld records does not create an entitlement to them under the FOI Act. When a record is released under the FOI Act, it effectively amounts to disclosure to the world at large. The FOI Act places no restrictions on the type or extent of the subsequent use to which a record may be put. This approach has been upheld by the Courts including in the judgment of Mc Dermott J. in F.P. and the Information Commissioner [2014 No. 114 MCA]. Furthermore, while the applicant also seeks inspection of the records, it follows that the Act places no restrictions on the further use of any information that a requester may glean further to inspection of a record.
Section 37(1) of the FOI Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. Section 37(7) provides that, notwithstanding subsection (2)(a) (which provides that section 37(1) does not apply where the information relates to the requester), a request shall be refused where access to a record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to individual(s) other than the requester. This is generally referred to as "joint personal information".
Accordingly, I find the above records to be exempt under section 37(1) of the FOI Act.

Section 37(8)/S.I. No. 218 of 2016

I am satisfied that records 56-58a, 60-60a, 63-71a; 78; and 80 contain personal information about the applicant's minor son, or joint personal information of the applicant and his minor son. Records 78 and 80 are clinical psychology notes.

On the face of it, these records are also exempt from release under section 37(1) of the FOI Act because they contain personal information about the applicant's son. However, Regulations made by the Minister for Public Expenditure and Reform under section 37(8) of the FOI Act (i.e. Statutory Instrument (S.I.) No. 218 of 2016) potentially provide for the applicant to access the records concerned. Taken together, Articles 4a, 5 and 6 of S.I. No. 218 provide for the release, to a parent or guardian, of records relating to a person that on the date of the FOI request has not attained full age (i.e. a minor), and where granting the request would, in the opinion of the head of the FOI body having regard to all the circumstances, be in the best interests of the minor.

In its judgment in the case of McK v. The Information Commissioner[2006] 1 IR 260, the Supreme Court held that a parent is entitled to a rebuttable presumption that access to his or her child's medical information (the records at issue in that case) is in the best interests of the child. The Supreme Court explained: "The presumption is that the release of such medical information would best serve the interests of the minor. However, evidence may be produced that it would not serve her interests, and, in considering the circumstances, her welfare is paramount."

I must also take into account Guidance, published in May 2017 by the Minister for Public Expenditure and Reform under section 48(1) of the FOI Act, regarding access by parents or guardians to records relating to minors (http://foi.gov.ie/download/cpu-notice-25-access-to-records-relating-to-deceased-persons-prepared-under-section-378-of-the-freedom-of-information-act-2014). Section 48(3) of the FOI Act provides that FOI bodies "shall have regard to" such guidelines when performing their functions under the FOI Act.

In particular, section 2.1(B) of the Minister's Guidelines list the following as factors to be considered:

• would the minor consent to the release of the material?;
• would release of the material damage the minor in some way?; and
• are the records held in the minor's own right?

As the applicant knows, it is the HSE's view that, having regard to all the circumstances, release of information to him about his minor son would not be in the child's best interests. In summary, it has concerns that the relationship between the applicant and his son's mother is such that granting access to these records could have a negative impact overall on his son. It also considers that granting access to the records concerned could undermine the applicant's son's trust in Psychology Services and impact on any future involvement he may have with those services. This Office put the HSE's arguments to the applicant, who did not reply.

I note that the HSE granted access to a number of other records about the applicant's son or about the applicant and his son. These include other psychology clinical notes. However, the contents of those records appear to me to be somewhat less sensitive than the contents of the specialised tests or records 78 and 80. However, the HSE now considers that its earlier decision to grant access to such records was not appropriate, particularly in the absence of input from professional staff in psychology services who treated the applicant's son. It also says that the applicant was given general feedback about his son's psychology sessions.

I am obliged to consider all circumstances set out by an FOI body when considering if release of information to a parent is in a minor's best interests. As already noted, the various records contain sensitive information. Particularly in the absence of submissions from the applicant, I consider the HSE to have given me sufficient argument to have justified its position that granting the request would not, having regard to all the circumstances, be in the best interests of the applicant's minor son.

Accordingly, I find that the applicant is not entitled to access to the personal information of his minor son, or the joint personal information of the applicant and his minor son, further to the provisions of S.I. No. 218 of 2016.

Section 37(2)
There are some further circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. Section 37(7) is also subject to sections 37(2(b) to (e). I am satisfied that none of those circumstances arise in this case in relation to the information solely about parties other than the applicant, or the various joint personal information. That is to say, (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)
Section 37(5) provides that a record, which is otherwise exempt under section 37(1), may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I have no reason to consider that the release of the information at issue would benefit the various third parties to whom the records relate, as envisaged by section 37(5)(b) of the FOI Act, nor has the applicant made any arguments in this regard.

On the matter of where the public interest lies (section 37(5)(a) refers), I have had regard to the comments of the Supreme Court in 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). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.

I accept that the FOI Act itself recognises a public interest in ensuring that the HSE is open about, and can be held accountable for, its treatment of the applicant's son. However, there is 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). This is recognised by the language of section 37 and also by the Long Title to the FOI Act. Accordingly, when considering section 37(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 public interest in favour of release of the withheld records has been met to an extent by the information released to date. I accept that release of the details concerned would further enhance the public interest in openness and accountability set out above. However, the withheld records contain very sensitive personal information. I also accept that their release would result in a significant breach of the rights to privacy of the parties whose personal information would be released. On balance, I find that the weight of the public interest in granting the request for the details concerned is not such that it outweighs the public interest that the right to privacy of the third parties should be upheld.

In the circumstances, there is no need for me to consider the other exemptions relied on by the HSE in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE's refusal to fully grant the applicant's request, on the basis that the requested information is exempt under section 37 of the FOI Act.

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