Whether the HSE was justified in redacting the email address of the sender of an email concerning the applicant under sections 37(1) and/or 42(m)(i) of the FOI Act

17 February 2021

Background

This case has its background in an email that was sent to the applicant’s employer regarding the applicant. In a letter dated 26 June 2020, the applicant sought access to “any details pertaining to the said email including the IP address and the false email name from which it was sent.” He said the email concerns an ongoing legal case, that it was sent maliciously and illegally, in breach of the “in camera” rule.

On 15 July 2020, the HSE released the email record with the redaction of the email address from which it was sent under section 37(1) of the FOI Act, which is concerned with the protection of third party personal information.

In a letter dated 27 July 2020 from his legal representatives, the applicant sought an internal review of that decision. He argued that his public interest outweighed the right to privacy identified by the HSE in redacting the information in circumstances where the “in camera” rule had been breached. He asked for the name and address of the individual concerned so that the matter could be brought to the attention of the Court. On 18 August 2020, the HSE affirmed its original decision. On 10 September 2020, the applicant sought a review of the HSE’s decision.

During the course of the review, Ms Whelan of this Office informed the applicant, through his legal representatives, of her view that section 42(m)(i) was the more relevant provision in this case and invited him to make a submission on the matter. In response, the applicant stated that he did not accept that the information requested is captured by the provisions of s42(m)(i) of the Act, or any other exception set out in the Act.

I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my 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 examined the record concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

It is important to note at the outset that a review by this Office is considered to be “de novo”, which means that it is based on the circumstances and the law as they pertain at the time of the decision. Section 42 of the Act excludes certain records from the scope of the FOI Act. Accordingly, in light of the “de novo” nature of our reviews, I consider it appropriate to consider the applicability of section 42(m)(i) to the information at issue in this case, notwithstanding the fact that the provision was not relied upon by the HSE as a ground for withholding the information.

This review is therefore concerned with whether the HSE was justified in redacting the email address of the sender of an email concerning the applicant under sections 37(1) and/or 42(m)(i) of the FOI Act.

Analysis and Findings

While the HSE relied on section 37(1) to redact the information at issue, I consider section 42(m)(i) to be the more relevant provision in this case. Accordingly, I will consider this provision first.

Section 42(m)(i) provides that the Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal, or lead to the revelation of, the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, or where such information is otherwise in its possession. In essence, the section provides for the protection of the identity of persons who have given information in confidence in relation to the enforcement or administration of the law to ensure that members of the public are not discouraged from co-operating with such bodies or agencies.

For section 42(m)(i) to apply, three specific requirements must be met. The first is that release of the withheld information could reasonably be expected to reveal, whether directly or indirectly, the identity of the provider of information. The second is that the information provided must have been provided in confidence, while the third is that the information provided must relate to the enforcement or administration of the law.

First Requirement

As the withheld information in this case is the email address of the sender, I am satisfied that its release could reasonably be expected to reveal, whether directly or indirectly, the identity of the sender and that the first requirement is met in this case.

Second Requirement

The second requirement is that the information provided must have been provided in confidence. As the applicant will note from the body of the email released, the sender expressly requested that his/her identity be withheld from the applicant. It is arguable that if people providing information to the HSE in such cases were not reassured as to confidentiality, the information gathering process would be compromised by the withholding of such information. I accept that without an assurance or understanding that information being provided is provided in confidence, such persons may be reluctant to provide this type of information in the future.

As outlined above, the applicant argued that the email in question was sent maliciously and that it also breached the “in camera” rule. This Office considers that the purpose of section 42(m)(i) is to protect the flow of information from the public which FOI bodies require to carry out their functions relating to the enforcement or administration of the law. Thus, section 42(m)(i) may apply where information was given in confidence, but is subsequently found to be mistaken or unfounded.

This Office gives significant weight to safeguarding the flow of information to FOI bodies. We accept that the disclosure of the identity of complainants, even where the evidence suggests that the complaint was maliciously motivated, could prejudice the flow of information from the public. In many situations the FOI body acts on the information provided in good faith. When the situation of the person who, in good faith, supplies information which is subsequently found on investigation to be inaccurate or mistaken is considered, the difficulty for the FOI body in handling such information in any other manner becomes apparent.

In the circumstances arising in this case, I am satisfied that the information was provided in confidence. I find that the second requirement is met.

Third Requirement

The third requirement is that the information provided relates to the enforcement or administration of the law. In its submission to this Office, the HSE explained that it is, in accordance with the provisions of the Health Act 2004 (as amended by the Health Service Executive Act 2013), the single body with statutory responsibility for the management and delivery of health and personal social services to the population of Ireland.

Furthermore, the HSE explained that section 7(1) of the Health Act 2004 (as amended) states that the objective of the HSE is to use the resources available to it in the most beneficial, effective and efficient manner to improve, promote and protect the health and welfare of the public. In addition, the HSE in performing its functions shall have regard to the policies and objectives of the Government or any Minister of the Government to the extent that those policies and objectives may relate to the functions of the Executive. The HSE stated that it has, in its role of promoting and protecting the health and welfare of the public, developed policies in protecting the vulnerable in society.

I note, in particular, that the HSE’s Trust in Care Policy obliges staff members to disclose any information which might have a bearing on their suitability for their position. Given that the email in question made mention of the applicant’s role in working with vulnerable people, I accept that the information provided relates to the HSE’s role in protecting the vulnerable in society in accordance with its obligations under section 7 of the Health Act 2004. I find, therefore, that the third requirement is met.

Having found that all three requirements are met, I find that section 42(m)(i) of the FOI Act applies and that the HSE was justified in refusing access to the information at issue. In light of this finding, it is not necessary for me to consider whether section 37 of the Act also applies.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the HSE to redact the email address of the sender of an email concerning the applicant under section 42(m)(i) 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