Whether the Hospital was justified in its decision to refuse access to records under sections 30, 31 and 37 of the FOI Act

25 February 2020

Background

On 5 December 2018, the applicant submitted a request to the Hospital under the FOI Act for access to records relating to him. The Hospital granted access to a number of records in full and in part. It refused access to the remaining records in full and in part under section 37 (Personal information) of the FOI Act.  

The applicant applied for an internal review on 3 March 2019. In addition, the applicant forwarded a letter which purported to be consent of a third party for access to personal information. On 21 August 2019, the Hospital affirmed its decision on most of the records under section 37(1) of the FOI Act. Three records which were refused by the Hospital under section 37 were also refused under section 30(1)(a) (Functions and negotiations of FOI bodies) of the Act. The Hospital refused access to one record under section 31(1)(a) (Legal professional privilege) of the Act.

On 29 August 2019, this Office received an application for a review of the Hospital’s decision from the applicant.

The Hospital refused access to two records on the basis that they were “Already in possession of requester”.  In effect, the Hospital refused access to the records under section 15(1)(i)(i) (records are available to the requester) of the Act but did not refer to the exemption in its decision. Following enquiries from this Office during the review, the Hospital stated that it had made arrangements for the records to be copied and released to the applicant.

In conducting my review, I have had regard to the submissions of the Hospital and to correspondence between this Office and the applicant and the Hospital. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

The applicant did not make a submission. However, during the course of the review the Investigator spoke to the applicant and explained the Office's views on the records and on the exemptions applied by the Hospital.

Scope of Review

This review is concerned with whether the Hospital was justified in deciding to refuse access to records in full and in part under sections 30(1)(a), 31(1)(a) and 37(1) of the FOI Act.

Preliminary Matters

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

Section 18 of the 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.

I note that the records at issue in this case are of a private and personal nature. When a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.

Analysis and Findings

Section 37- (Personal Information)
Three records which were withheld under section 30(1)(a) were also withheld under section 37(1). Also, the Hospital refused access to one record (document 6) on the basis of legal advice privilege. Having examined the records, I decided to consider all of them under section 37(1) first, as this appears to be the most relevant provision.

Section 37(1)
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. For the purposes of the Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including "(i) information relating to the educational, medical, psychiatric or psychological history of the individual, (xii) the name of the individual where it appears with other personal information relating to the individual or where disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual, and (xiv) the views or opinions of another person about the individual".

Section 37(7) provides that a request shall be refused where access to a record would, in addition to involving disclosure of personal information relating to the requester, also involve the disclosure of personal information of other individuals (joint personal information).

Due to the sensitive nature of the records, I cannot discuss their content in any detail, other than to state that the withheld information is sensitive personal information about third parties other than the applicant, as well as joint personal information about the applicant and a third party or parties. The personal information of the applicant is inextricably linked to that of other identifiable individuals.

Accordingly, I find the records to be exempt under section 37(1) of the FOI Act.

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(2)(b) provides that section 37(1) does not apply if consent is made in writing by the individual to whom that information relates. The section further provides that consent should be established to the satisfaction of the head of an FOI body. There is some doubt whether the consent of one of the third parties was valid. There is no evidence of consent from the other individuals whose personal information is on the records. I am not satisfied that in the circumstances, this Office can proceed on the basis that any of the third parties whose information appears in the records have given appropriate consent in accordance with section 37(2). Neither is it necessary or appropriate for this Office to approach individuals to seek their consent to the release of sensitive personal information. I find that section 37(2) does not dis-apply the section 37(1) exemption in this case.

Section 37(7) is also subject to sections 37(2)(b) to (e). I am satisfied that none of these are relevant in this case.

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 am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.

Section 37(5)(a) - the Public interest
In considering the public interest test in section 37(5)(a), I must have 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 (the Rotunda judgment), 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).

The FOI Act itself reflects a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business. Thus, in this case, I find that there is a general public interest in openness and accountability as to the manner in which the Hospital carried out its functions. On the other hand, the FOI Act recognises a very strong public interest in protecting privacy rights in the language of section 37. It is also worth noting that the right to privacy also 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.

I wish to emphasise that the public interest test does not give me authority to act as an alternative dispute mechanism with respect to complaints about actions of public bodies.

I cannot identify a public interest which would override the Constitutional rights to privacy of the third parties to whom the information in the records relate. As regards section 37(5)(a), the public interest in openness and transparency in how the Hospital dealt with the applicant has been served to some extent by the release to him of information in the records. I therefore find that the public interest in granting the request does not override the public interest in upholding the privacy rights of other individuals involved.

Accordingly, I find that section 37(1) of the Act applies to the withheld information in the records.

Having found section 37(1) to apply to the withheld information in the records, I do not find it necessary to consider the decision of the Hospital on the basis of sections 30 and 31 of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Hospital to refuse access to the withheld information in the records under section 37(1) of the FOI Act.

If it has not already done so, I direct the Hospital to release to the applicant those records which it agreed to release during this review, subject to the redaction of any personal information of individuals other than the applicant.

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