Whether the HSE was justified in its decision to refuse the applicant’s request for access to information relating to him contained in a statement taken by its staff members

30 July 2020

Background

On 20 May 2020, the applicant submitted a request to the HSE for access to details concerning him contained in a statement taken by two named staff members of the HSE’s Adult Mental Health Services. On 27 May 2020, the HSE refused access to the record at issue under section 35(1) of the FOI Act (information obtained in confidence). 

On 2 June 2020, the applicant sought an internal review of that decision, following which the HSE affirmed its original decision.  The applicant sought a review by this Office of the HSE’s decision on 23 June 2020. He indicated that he was seeking access to any information contained in the record relating to him.

During the course of this review, Ms Swanwick of this Office wrote to the applicant and outlined her view that the information contained in the relevant record was exempt under section 37 of the FOI Act on the ground that release of the information would also involve the disclosure of personal information relating to third parties. She invited the applicant to make a further submission on the matter.

As no such submission has been made, I consider it appropriate to conclude this review by way of a formal, binding decision.  In conducting this review, I have had regard to the correspondence between the HSE and the applicant as outlined above and to correspondence between this Office and both the HSE and the applicant on the matter.  I have also have had regard to the contents of the relevant record.

Scope of Review

This review is concerned solely with whether the HSE was justified in refusing the applicant’s request for access to information relating to him contained in the statement taken by its staff members.

Preliminary Matters

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

Firstly, section 18 of the FOI 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.

Secondly, while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material.  This means that the description which I can give of the withheld information and of the reasons for my decision is somewhat limited.

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 of the Act 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 information at issue may affect the interests of third parties, it is appropriate, in my view, for me to consider the applicability of section 37, notwithstanding the fact that it was not relied upon by the HSE in refusing access to the information sought.

Analysis and Findings

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 2 of the FOI Act defines the term “personal information” as information about an identifiable individual that either (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 an FOI body on the understanding that it would be treated by the body as confidential. The FOI Act details fourteen specific categories of information which 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, and (xiv) the views or opinions of another person about the individual.

Having examined the relevant record, I am satisfied that all information relating to the applicant contained therein is inextricably linked to the personal information of other individuals, i.e. joint personal information. In other words, the release of any information in the record relating to the applicant would also involve the release of personal information relating to other individuals. Accordingly, I find that section 37(1) applies to such information. 

Section 37(2) sets out certain circumstances in which section 37(1) does not apply.  I am satisfied that none of those circumstances arise in this case.  Furthermore, section 37(5) 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 benefit the person to whom the information relates.

As no evidence has been presented to this Office to suggest that the release of the information at issue would benefit the third parties concerned, I find that section 37(5)(b) does not apply.  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 person 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. However, the FOI Act also 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.

While I accept that there is a public interest in the applicant accessing personal information relating to him, the release of the information at issue would also involve the disclosure of personal information relating to third parties. Therefore, the question I must consider is whether the public interest in support of release of the information outweighs, on balance, the public interest in protecting the privacy rights of the individuals to whom the information relates.  Having regard to the nature of the information concerned, I am satisfied that it does not.  In holding this view, I am particularly cognisant of the fact that release under FOI is, in effect, release to the world at large given that the Act places no constraints on the uses to which information released under FOI may be put. I find therefore, that section 37(5)(a) does not apply.

Consequently, I find that the HSE was justified in its decision to refuse access to the information sought under section 37(1) of the FOI Act.  Given my findings regarding section 37, it is not necessary for me to consider the applicability of section 35 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 the applicant’s request for access to information relating to him contained in the statement concerned, 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