Whether the HSE was justified in refusing to fully grant the applicant's request for records concerning her attendance at counselling sessions

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 6 February 2017, the applicant made an FOI request for all records relating to her attendance at counselling sessions in 2012 to 2014. The HSE's decision of 21 March 2017 partially granted her request. It relied on section 37 (the personal information exemption) in refusing to grant full access to certain records.  On 27 March 2017, the applicant sought an internal review of the HSE's decision, which the HSE affirmed on 31 May 2017. On 2 September 2017, the applicant sought a review by this Office of the HSE's decision on her request. 

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. I have had regard also to copies of the records at issue, which were provided to this Office for the purposes of this review, and to the provisions of the FOI Act. 

Scope of the Review

This review is confined to whether or not the HSE has justified its refusal to fully grant the applicant's request.

Findings 

In making my decision, I must comply with sections 13(4) and 25(3) of the FOI Act. Section 13(4) provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons for the request. 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. 

Furthermore, I must also take account of the fact that the grant of access to a record under the FOI Act is understood, effectively, to be equivalent to the record's release to the world at large. 

Section 37
Section 37(1)
Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing personal information.

"Personal information" is defined at section 2 of the FOI Act as

"information about an identifiable individual that - 
(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 a public body on the understanding that it would be treated by it as confidential" ...

I am constrained in the description I can give of the information that the HSE has withheld under section 37. However, I am satisfied that it meets one or both of the above definitions. I find that it is personal information that is exempt under section 37(1) of the FOI Act.

Section 37(2)
There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. I am satisfied that, with the exception of some information withheld from records 3, 5, and 56, no such circumstances arise in this case. That is to say, (a) that the details concerned do not relate to the applicant; (b) that the third parties have not consented to the release of their personal 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. 

I cannot disclose the nature of the information that the HSE withheld from records 3, 5, and 56. Furthermore, outlining the HSE's reasons for redacting the information would itself breach section 25(3). While the personal information in these records is very general, and probably not what the applicant is most interested in having access to, I am satisfied that this information relates to the applicant and is releasable under section 37(2)(a), except for the name of a third party (who is not a public servant) referred to in records 3 and 56. I accept that disclosure of the third party's name that is contained in records 3 and 56, in the context of other details in those records, would disclose information about that individual's employment history and therefore is their personal information. The HSE's reasons for withholding the other details from records 3, 5 and 56 are not clear. No third party individual is either directly or indirectly identifiable from them. 

Accordingly, further to the provisions of section 37(2)(a), I direct the HSE to grant access to the remainder of records 3, 5 and 56, other than the name of the individual other than the applicant referred to in records 3 and 56. 

It may be the applicant's position that the rest of the withheld information relates to her as well as to the third parties concerned, and that she is entitled to it further to section 37(2)(a). I accept that she provided the information concerned. However, this does not give her an entitlement to access to that information under the FOI Act, which as noted earlier, is effectively the same as disclosing it to the world at large. Furthermore, section 37(7) provides that, notwithstanding section 37(2)(a), 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 ("joint personal information"). Section 37(7) is also subject to sections 37(2(b) to (e). I am satisfied that none of sections 37(2)(b) to (e) have relevance in the present case.
Finally, the applicant's submission of 1 November 2017 could perhaps be taken as indirectly arguing that I should direct the release of the withheld information under section 37(2)(e), which refers to avoidance of danger to life or health. However, I do not consider myself to have a sufficient basis on which to make such a direction. 

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 do not consider that the release of the information at issue would benefit the third parties, as envisaged by section 37(5)(b) of the FOI Act. 

Section 37(5)(a) - The Public Interest

On the matter of where the public interest lies, 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] IESC 26 ("the Rotunda judgment"). 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 have carefully read the applicant's OIC application and her submission of 1 November 2017. It is clear how it important it is to her to be able to read her records in full. However, this is a private interest, and further to the Rotunda judgment, I cannot take it into account. The applicant also says she understands that she would need permission to do anything further with the information concerned. I do not doubt her assurances. However, I cannot have regard to them, because any grant of access to the applicant has to be taken as disclosing the information concerned to the world at large. Furthermore, there is no provision in the Act for restricting the use to which records can be put, or attaching conditions to their release. 

In the case at hand, there is a public interest in establishing that the HSE carried out its functions in dealing with the applicant in a way that was consistent with the principles of natural and constitutional justice, as well as the right to privacy. This public interest has been served to a considerable extent by the material released by the HSE to date, which amounts to the majority of the information in the records. 

On the other hand, both 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). 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. I accept that release of the details concerned would further serve the public interest in openness and accountability regarding the HSE's treatment of the applicant. However, 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 rights to privacy of the third parties should be upheld.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE's decision. I affirm its refusal, under section 37 of the FOI Act, to grant full access to most of the withheld information. However, further to the provisions of section 37(2)(a), I direct it to grant access to the remainder of records 3, 5 and 56, other than the name of the individual other than the applicant referred to in records 3 and 56. 

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 requester 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