Whether the HSE was justified in its decision to refuse access to a letter that a named GP had sent to the HSE's Mental Health Services concerning the applicant

03/07/2018

Background

On 17 October 2017 the applicant sought access to a letter that a named GP had sent to the HSE's Mental Health Services concerning him. On 8 December 2017 the HSE refused the request under sections 35 and 37 of the FOI Act. The applicant sought an internal review of that decision, following which the HSE affirmed its original decision to refuse access to the record sought. The applicant, through his solicitor, sought a review by this Office of the HSE's decision on 24 January 2018.
In conducting this review I have had regard to the correspondence between the applicant and the HSE, and to correspondence between this Office and both the HSE and the applicant on the matter. I have also had regard to the contents of the record sought.

Scope of Review

This review is solely concerned with whether the HSE was justified in refusing access to the letter sought by the applicant under sections 35 and 37 of the FOI Act.

Preliminary Matters

It should be noted that under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large. This is of particular relevance where the question of the release of information relating to third parties is at issue.
Secondly, section 2 of the Act defines -�record-� as including -�a copy or part-� of anything falling within the definition of a record. 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 FOI 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). The Commissioner takes the view that neither the definition of a record under section 2 of the Act 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, he is not in favour of the cutting or "dissecting" of records to such an extent. He takes the view that, being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Finally, section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that in this case, the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions.

Analysis and Findings

The applicant's solicitor stated that the letter at issue was presented to the HSE in circumstances where he was detained by An Garda Síochána and the servants and agents of the HSE purportedly under the Mental Health Act 2001. The HSE refused access to the letter under sections 35 and 37 of the FOI Act, on the basis that the record contains information obtained in confidence and the personal information of third parties. In my view, section 37 is of most relevance so I will address that claim for exemption first.
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned 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 or individuals other than the requester (commonly known as joint personal information).
Section 25(3) of the FOI Act requires me to to take all reasonable precautions to prevent the disclosure of information contained in an exempt record. As such, I find that I cannot give a detailed description of the letter at issue or its contents, nor can I give a comprehensive explanation of my findings. Having reviewed the record, I am satisfied that the disclosure of the record would involve the disclosure of joint personal information relating to the applicant and other individuals. I find, therefore, that section 37(1) applies.

Section 37(2) and 37(5)

There are certain circumstances, provided for under section 37(2) and 37(5), in which the exemption set out in section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. Section 37(5) provides that a record, which is otherwise exempt under section 37, 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 the 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 concerned, as envisaged by section 37(5)(b) of the FOI Act.
On the matter of whether section 37(5)(a) applies, I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the third parties to whom the information relates.
There is clear a public interest in the applicant accessing his own personal information and in enhancing the transparency and accountability of the HSE in connection with his involuntary admission. However, the fact remains that the release of the record would also disclose personal information relating to third parties. As such, section 37(5)(a) requires me to balance the public interest in the release of the record against the privacy rights of those third parties.
On the matter of privacy rights, the FOI Act recognises the strong public interest in the protection of the right to privacy, both in the language of section 37 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy 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.

In essence, the applicant argued that the letter comprised a recommendation of involuntary admission and that it failed to meet certain requirements for such a recommendation under the Mental Health Act 2001. It is not within the remit of this Office to examine the appropriateness of the HSE's actions in respect of the involuntary admission. I am restricted to considering whether the public interest in the release of the record sought outweighs, on balance, the privacy rights of the relevant third parties. Bearing in mind that release under the FOI Act is treated as release to the world at large, and in light of the strong protections afforded to privacy rights under the Act, I find that it does not. I am satisfied that section 37(5)(a) does not apply in the circumstances. I find therefore that the HSE is justified in refusing access to the record, under section 37(1) of the FOI Act.
Given my findings regarding section 37 of the FOI Act, there is no need for me to consider the section 35 exemption in this review.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse access to the record at issue 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.

Stephen Rafferty
Senior Investigator