Case 000442. Record of two interviews held with the applicant - decision to grant access in form other than that requested- whether granting access in the manner requested would prejudice, impair or damage any interest protected by Part III or section 46 - section 12(2)(b)(iv).

Case Summary

Facts

The applicant applied to the Western Health Board for photocopies of transcripts of two interviews which she had with an inquiry team established by the Board. The Board decided to grant access to the records in full by way of inspection and to provide the applicant with edited copies of the records. The only editing done on the copy documents was to delete the names of the individuals whom she named in her interviews with the Inquiry team. In seeking a review of this decision, the applicant asked to be provided with unedited copies of the records i.e. with the names of the individuals mentioned included. The parties named by the applicant in her interviews, and whose names were deleted from the transcript copies provided to her, were alleged child abusers, their alleged victims and the identities of employees of two public bodies.

Decision

The Commissioner held that the identities of alleged abusers and their alleged victims must be regarded as personal information in relation to those persons and were therefore exempt under section 28. He held that, while there was a public interest in the applicant having access to the information which she provided to the Board, the Board was justified in deciding to provide such access by way of inspection.

The Commissioner did not consider that section 28 applied to the names of the employees of the two public bodies who were referred to in their capacity as employees rather than as private individuals. He did not accept the Board's argument that the names were exempt under section 21(1)(a) on the grounds that disclosure of the names could reasonably be expected to prejudice the effectiveness of this particular inquiry or other such inquiries. He directed that the Board release these names by way of inclusion in a copy of the records.

Date of Decision: 17.05.2002

Our Reference: 000442

17.05.2002

Ms X

Dear Ms X,

I refer to your application to this Office for a review of the decision of the Western Health Board (the Board) in relation to your Freedom of Information (FOI) request of 21 July 2000. Your request was for the transcripts of two interviews held with you on 20 January and 17 February 2000 by the Western Health Board Inquiry into Brothers of Charity Services, Galway. I apologise for the delay which has arisen in dealing with this matter; this arose because of the volume of cases pending before my Office.

Background

The effect of the Board's decision was to grant you access to the records in full by way of inspection and to provide you with edited copies of the records. The only editing done on the copy documents was to delete the names of the individuals named by you in your interviews with the Inquiry team. In seeking a review of this decision, you are asking to be provided with unedited copies of the records i.e. with the names of the individuals mentioned included.

In carrying out this review I have had regard to the Board's conclusions in the matter, to your submissions to the Board and to this Office, to your detailed telephone conversation of 20 November 2001 with Fintan Butler of my staff, and to the provisions of the FOI Act generally. I have also examined the records in question.

Scope of Review

The scope of this review is confined to the issue of whether the Board was justified, in terms of the provisions of the FOI Act, in its decision to grant access by way of inspection only to the complete transcripts of your interviews with the Board's inquiry team. As the Board has already given you an edited version of the transcripts, the question does not arise as to whether copies of any kind should have been provided.

Findings

Preliminary Comments

Before dealing with the exemptions which might apply in this case, I consider it necessary to deal with what I believe is a central issue for you. As I understand it, your position relies heavily on the fact that the content of the two records in question consists of material provided by you to the Board. On this approach, provision of full transcripts does no more than give you back what you have already provided to the Board and can hardly involve any detriment to the Board or to the individuals named in your interviews with the Board. While I can understand that it is reasonable for you to take this position, particularly given your professional standing and your co-operation with the Board in the conduct of its inquiry, the fact is that your request was made under the FOI Act and is subject to the provisions of that Act.

When a record is released under the FOI Act this, in effect, amounts to disclosure to "the world at large" as the Act places no restrictions on the subsequent uses to which the record may be put. This position was explicitly upheld by the High Court in its judgement of 6 April 2001 in the case of E.H. and the Information Commissioner (full text of this judgement is available on my Office website at www.oic.ie). Although the FOI Act does not give immunity from legal proceedings for defamation or breach of confidence if the requester or any other person publishes the records to which he/she has been granted access, neither is there anything which qualifies or restricts the use by requesters of records released under the FOI Act. The significance of this is that, in the normal course, the identity of the requester is not a relevant factor in FOI decision making. (The main exception to this rule is a situation in which the requester seeks records disclosing personal information solely about himself or herself or about his/her children or deceased relatives.)

The purpose of the FOI Act, as set out in its Long Title, is "... to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies...". This purpose is achieved by means of giving access to records; the manner of such access is determined in accordance with section 12 of the Act which sets out a range of options provided always that access is given to the relevant information.

Section 12(2)(b)

The Board decided to grant access by way of inspection to the complete transcripts of the two interviews and to provide edited copies of the records with the identities of persons referred to deleted. In its internal review decision of 14 September 2000 the Board made it clear that it was relying on section 12(2)(b) of the FOI Act for the decision to grant you access in a manner other than that sought by you.

Section 12 (2)(b)(iv) provides:
"Where a head decides to grant a request under section 7 and the request is for access in a particular form or manner to a record such access shall be given in that form or manner unless the head concerned is satisfied -

.....(b) that the giving of access in the form or manner requested would
..........(iv) prejudice, impair or damage any interest protected by Part III or section 46."

The Board decided not to grant access to the complete records in the form requested i.e. photocopies, on the grounds that release in the manner requested would prejudice the interests protected by section 21(1)(a) of the FOI Act. However, before considering the case in relation to section 21(1)a), I consider it useful to look at the relevance of section 28(1) which is another of the interests protected by Part 111 of the FOI Act.

Section 28

The parties named by you in your interviews, and whose names have been deleted from the transcript copies provided to you, are alleged abusers, their alleged victims and the identities of employees of the Brothers of Charity or of the Board. The identities of alleged abusers and alleged victims of abuse must be regarded as personal information in relation to those persons. Personal information is defined in the FOI Act as :

"information about an identifiable individual that -

(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 the public body on the understanding that it would be treated as confidential."

Personal information includes, among other things, the name of the individual where it appears with other personal information relating to the individual. Section 28(1) of the Act provides:

"Subject to the provisions of this section, a head shall refuse to grant a request under section 7, if in the opinion of the head, access to the record concerned would involve the disclosure of personal information (including information relating to a deceased individual)."

I understand Mr. Butler of my Office discussed the issue of personal information, and the exemption provided for at section 28(1) of the FOI Act, when he spoke to you on 20 November 2001. I note that you made no argument in relation to section 28 in your subsequent letter of 5 December 2001. In the circumstances, I feel it is not necessary to deal here in detail with the provisions of section 28.

I consider that the identities of alleged abusers and alleged victims of abuse constitute personal information in relation to those individuals and is therefore exempt from release under section 28(1) unless one of the other relevant provisions of section 28 apply, i.e. 28(2)(b) to (e), 28(5) or 28(6). In my opinion, the exceptions in section 28(2)(b) to (e) and 28(6) do not apply to any of the records at issue; nor has any case been made that they do apply. Section 28(5) allows for the release of another person's personal information where, 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". It can be argued that the release of complete copies of these records to you would not involve any invasion of the privacy of the other people named; this is because the information is already known to you since you supplied it in the first instance. However, whatever the situation where a person supplies information in writing to a public body, and thereby creates the record, these records were created by the public body and are therefore public records. They are particularly sensitive public records and, clearly, if they were for any reason (including purely by accident) to become accessible to other parties, who have no knowledge of the information they contain, a serious invasion of privacy would occur. I accept that there is a public interest in your having access to the Board's record of the information supplied by you - for example, there is a public interest in ensuring that the Board has accurately recorded your information and, thus, is performing its statutory duty properly - and that, on this basis, you should have access to the information in these records. I find, in the circumstances of this particular case, that in relation to the names of alleged abusers and their alleged victims, the Board was justified in deciding to provide access to these names only by way of inspection of the transcripts.

Section 21(1)(a)

The remaining names withheld are those of staff members of the Brothers of Charity and of the Board itself who are referred to in their capacity as employees rather than as private individuals. The identities of these people does not constitute personal information and is not, accordingly, protected by section 28(1) of the FOI Act. If these names are to be withheld, it will be by reference to section 21(1)(a) of the Act.

Section 21(1)(a) provides:

"A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to -

(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of the public body concerned or the procedures or methods employed for the conduct thereof."

The issue is whether release, by way of provision of a copy of the transcripts, of the identities of employees of the Brothers of Charity and of the Board, whom you name as being involved in the examination or investigation of abuse allegations (and related matters), could reasonably be expected to prejudice the effectiveness of the particular inquiry or other such inquiries or investigations. As I understand its case in relation to the identities of these employees - against whom no allegations of wrong-doing have been made - the Board appears to be arguing that to disclose these names might have the effect of causing the employees concerned, or other such employees, not to co-operate with this inquiry or other such inquiries. It is reasonable to assume all staff of public bodies - and in the circumstances it is reasonable to treat the staff of the Brothers of Charity as public employees - will co-operate with such inquiries particularly where the inquiry relates to the performance of their own functions. Furthermore, where an inquiry is in the context of the welfare of children having been put at serious risk, it is not sustainable that anything other than full co-operation would be given by such public employees. In the circumstances, I find that the Board was not justified in its decision that section 21(1)(a) allows for the withholding of the identities of these particular employees.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I hereby vary the Western Health Board's decision in this case and direct the release, by way of inclusion in a copy of the records provided, of references to the names of employees of the Brothers of Charity and of the Board, being references to such employees in the performance of their functions, and not being references to employees against whom allegations of wrong-doing have been made. I uphold the decision of the Board insofar as it relates to references to the names of alleged abusers and alleged victims of abuse.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Information Commissioner