Whether the HSE was justified in its decision to refuse access to a record held on the applicant's psychiatric file under various sections of the FOI Act

21/03/2019

Background

On 15 October 2018, the applicant made a request to the HSE for records relating to a psychiatric diagnosis made by a specified doctor. On 13 November 2018, the HSE issued a decision in which it granted the applicant's request and released records held on the applicant's psychiatric file but refused one record under section 31 of the FOI Act. On 16 November 2018, the applicant sought an internal review of the HSE's decision. The HSE issued an internal review decision on 7 December 2018 in which it affirmed its original decision. The applicant sought a review by this Office of the HSE's decision on 20 December 2018.

During the course of the review, the HSE stated that it wished to rely on sections 31(1)(a) & (b), 32(1)(iv), section 32(1)(b), section 42(1) and section 42(f) in refusing the applicant access to the record in question. Ms Hannon of this Office wrote to the applicant and informed him of her view that section 37 was the most appropriate provision and invited him to make a submission on the matter.

As a submission has now been received, I have decided to conclude this review by way of a formal, binding decision. In carrying out my review, I have had regard to the correspondence between the HSE and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the HSE, and to the contents of the record at issue.

Scope of Review

This review is solely concerned with whether the HSE was justified in refusing access to a record held on the applicant's psychiatric file under various provisions of the FOI Act.

Preliminary Matter

Before I consider the substantive issues arising in this case, I wish to make a number of preliminary comments. 

Firstly, while I am required by section 22(10) of the FOI Act to give reasons for my decision, this is subject to the requirement of section 25(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, I am constrained in the description which I can give of the record to which the HSE has refused access and of the reasons for my decision.

Secondly, it should be noted 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 given that the Act places no restrictions on the use to which records released under the Act may be put. 

Thirdly, in submissions to this Office, the applicant raised various issues he had with the treatment he received at a psychiatric facility. It is important to note that this Office has no role in examining the appropriateness, or otherwise, of the administrative actions of public bodies, nor is it the role of this Office to comment on how an FOI body performs its functions generally. 

Finally, as noted above, this Office has determined that the exemption at section 37 is of relevance in this case. My jurisdiction under section 22 is to make a new decision in light of the facts and circumstances as they apply on the date of the review. Given the fact that the exemption relating to the protection of personal information is mandatory, and that the release of the record at issue may affect the interests of third parties, it is appropriate for me to consider the applicability of section 37, notwithstanding the fact that it was not originally relied upon by the HSE in refusing access to the information sought.

Analysis and Findings

 
As outlined above, the HSE stated that it wished to rely on sections 31(1)(a) & (b), 32(1)(iv), section 32(1)(b), section 42(a)(i) and section 42(f) in refusing the applicant access to the record in question. As the Act does not apply to records to which section 42 applies, I will address that section in the first instance.

Section 42(a)(i) provides that the Act does not apply to a record held by the courts and relating to a court or to proceedings in a court other than (at relevant part) a record relating to the general administration of the courts or the offices of the court. As the record at issue in this case is held by the HSE, I find that section 42(a)(i) does not apply.

Section 42(f) provides that the Act does not apply to a record held or created by the Attorney General or the Director of Public Prosecutions or the Offices of the Attorney General or the Director of Public Prosecutions, other than a record relating to general administration. However, the record is not a record that is held, or was created by, the Attorney General or the Director of Public Prosecutions or the Offices of the Attorney General or the Director of Public Prosecutions. I find, therefore, that section 42(f) does not apply. 

Of the remaining exemptions, I consider section 37 to be of most relevance in this case. Section 37(1) 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).

Having examined the record in question, I am satisfied that the information in the record is either personal information relating solely to third parties or personal information relating to the applicant that is inextricably linked to personal information relating to a third party or third parties (i.e. joint personal information). I am satisfied that the release of information relating to the applicant would also involve the disclosure of personal information relating to third parties. I find, therefore, that section 37 (1) applies.   

Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case, namely (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 the 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) 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 of the information would be to the benefit of the person to whom the information relates. It has not been argued that releasing the record at issue would benefit the third parties to whom the information relates, nor do I believe that this would be the case. I am therefore satisfied that section 37(5)(b) does not apply to the relevant record. 

On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the persons to whom the information relates.  

In considering 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 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. 

The FOI Act acknowledges that there is a public interest in promoting the openness and accountability of public bodies in the manner in which they perform their functions. On the other hand, the FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and 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.
 
The information at issue in this case is of a very sensitive and inherently private nature. Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find that the public interest in granting access to the record does not, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

In conclusion, therefore, I find that the HSE was justified in refusing access to the withheld record under section 37 of the FOI Act. Given my findings regarding section 37, it is not necessary for me to consider the applicability of sections 31(1)(a) & (b), 32(1)(iv) or section 32(1)(b) in this case

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 sought, but on the ground that section 37(1) applies.

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