Whether the HSE is justified in its decision (in reliance on section 28 of the FOI Act) to refuse access to records concerning the applicant's son which were sought in a request under section 7 of the FOI Act

Case Summary

Issue

Whether the HSE is justified in its decision (in reliance on section 28 of the FOI Act) to refuse access to records concerning the applicant's son which were sought in a request under section 7 of the FOI Act

Decision

The Commissioner found that the circumstances had changed since the original decision in that the subject of the records is no longer a minor and had consented to the release of the records to his father.  She varied the decision of the HSE in relation to those parts of the records and directed the release of them under the provisions of section 28(2)(b) of the FOI Act. She affirmed the HSE's refusal of access to those parts of the records containing the personal information relating to  a third party under section 28(1) and section 28(5B) of the FOI Act.

Right of Appeal

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 eight weeks from the date of this decision.

Date of Decision: 17.08.2009

Review Application under the Freedom of Information Acts 1997 and 2003 to the Information Commissioner.

Background:

The FOI request received by the HSE on 5 January 2009 was for access to records relating to the applicant's son's "-------------- from June 2006 onwards". The HSE did not issue a decision on the application within the one month period allowed; it appears that this was due to the time taken to consult affected third parties. On 10 March 2009, the applicant made an application to it for internal review on the basis of a 'deemed' refusal of his request. In its decision of 31 March 2009, the HSE refused access to the records. It relied on section 28(1) of the FOI Act and the provisions in relation to personal information It said that it had considered the regulations made by the Minister for Finance pursuant to section 28(6) of the Act which provide for the disclosure of the personal information of a minor to that individual's parent or guardian where access to the records would, in the opinion of the decision maker and having regard to all of the circumstances and the guidelines drawn up, be in the minor's best interests. The HSE said that it considered the Supreme Court's decision that, as a parent, the applicant enjoys a fundamental presumption under the Constitution that he is acting in his child's best interests. However, the HSE found, having consulted with various parties involved in the individual's care that the granting of the request would not be in the best interests of the applicant's son and that the public interest in protecting his privacy rights outweighed the public interest in the applicant having access to the records. The applicant applied to my Office, on 27 April 2009, for a review of the HSE's decision.

The records were submitted to my Office by the HSE for the purposes of this review.

In conducting this review, I have had regard to the relevant submissions of the HSE as well as those of the applicant, the views of the applicant's son, the provisions of the FOI Acts and the contents of the records.

Scope of Review

My review is concerned solely with whether the HSE is justified under the FOI Acts, in its decision to refuse access to the records. The handling by the HSE of the applicant's complaints or issues relating to the circumstances which gave rise to the creation of the records are outside of my remit as Information Commissioner. The applicant has said that he wishes to have access to all of the records, including those comprising his own correspondence with HSE staff. In response to preliminary views issued on 25 May 2009 by Elizabeth Dolan, Senior Investigator of my Office, he also indicated that, if the personal information relating to ----- as it appeared in the records was relevant to the HSE's involvement with him and his son and the outcome of allegations made against him, he wished to have access to such information.

It is important to note that my review is a de novo process which means that it is based on the circumstances and the law as they pertain at the time of the decision. Therefore, in this case I must take into account that the subject of the records (the applicant's son) is no longer a minor having reached the age of eighteen. However, I have no jurisdiction to consider any further records created after the date of receipt by the HSE of the original request;  therefore my review is confined to the records created from June 2006 up to 5 January 2009. A total of 225 numbered pages of records were provided to my Office by the HSE although a small number of these are duplicates or are outside of the scope of the request which was confined to records created since June 2006. Several records relate to the applicant's contacts with the HSE in the context of family matters which do not appear to be confined to his son's dealings with the service; I have considered these as they appear on the HSE's files. I understand that, since this review commenced, the HSE has, on foot of a separate FOI request from the applicant,  released at least some of the records under consideration here. However, as the applicant has not indicated that he wishes to withdraw his application, I am concluding my review through the issue of a formal decision.

Section 34(12)(b) of the FOI Act provides that, where a decision to refuse a request is being reviewed by the Information Commissioner, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Thus, in this case, the onus is on the HSE to satisfy me that its decision is justified.

Furthermore, I wish to make it clear that I am unable to give  particularly informative descriptions of the content of the records at issue.  The provision of more detail in some instances would be in breach of section 43(3) of the FOI Act, which provides that I must take reasonable precautions to prevent disclosure of information in an exempt record. In particular, I must refrain from disclosing information which any party contends is contained in an exempt record so as to preserve that party's right of appeal to the High Court.

Submissions

 .

Findings

Section 28

Section 28(1) of the FOI 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".

However, section 28(2) provides, inter alia, that the prohibition on the release of personal information does not apply if:

"(a) ...the information concerned relates to the requester concerned,

 (b) any individual to whom the information relates consents, in writing or any such form as may be determined, to its  disclosure to the requester,..."

Furthermore, subsection (5) of section 28 provides that the section 28(1) exemption does not apply -

"Where, as respects a request under section 7 the grant of which would, but for this subsection, fall to be refused under subsection (1), in the opinion of the head concerned, on balance

(a) 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, or

(b) the grant of the request would benefit the individual aforesaid, the head may, subject to section 29, grant the request."

In a situation where a record or part of a record contains personal information about a requester, which is closely intertwined with personal information about another party (or parties), and where it is not feasible to separate the personal information about the requester from that relating to the other party (or parties), it can be described as joint personal information and the provision at section 28(5B) of the FOI Act applies. Section 28(5B) - which was inserted by the Freedom of Information (Amendment) Act, 2003 -  provides that, subject to the other provisions of section 28, a request shall be refused where 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 other than the requester.

(1) Personal Information relating to the applicant's son -  Consent

I am satisfied that all of the records withheld by the HSE constitute joint personal information about the applicant's son, the applicant himself and the applicant's family.  Some portions constitute personal information relating to the applicant and/or his son which is inextricably intertwined with personal information about ------ and this is dealt with separately below.

In relation to the consent issue, the position is that the applicants son had reached eighteen years of age before this review was considered by my Office. The applicant's review application was accompanied by a letter signed by his son stating that he wished his father to have access to the records. However, at that time, the applicant's son was still a few weeks short of his majority. The HSE's submissions included evidence that its consultations with the applicant's son had resulted in his expressing a wish that his information not be released. No case has been made that the applicant's son has an incapacity which would make him incapable of exercising his rights under the FOI Act (Article 3(1)(a)(ii) of the Freedom of Information Act 1997 (Section 28(6) Regulations, 1999 - SI No 47 of 1999 refers) or incapable of giving informed consent in respect of the applications.

The HSE accepts that the individual concerned is capable of understanding the concept of consent.

Given these changes in circumstances, my staff considered it prudent to seek to establish whether the applicant's son understood what was at issue and whether he wished to consent to the release of the records to his father at this time. Therefore, members of my staff met with the applicant's son and explained to him the background to the application and the purpose of this review. Having examined the records at issue, he indicated, verbally and in writing, that he consents to his father being granted access to his personal information as it appears in the records. I should say here that my Office generally does not contact or meet with affected persons in relation to consent issues arising out of requests for access to personal information; the procedures followed were deemed necessary due to the particular circumstances of this case and the HSE was made aware of them.

While I note the HSE's view that the withholding of the records would be in the best interests of the applicant's son, there is no provision in the FOI Act for me to disregard the consent obtained nor to consider whether release of these records is in the best interests of a third party who is an adult and who has consented to the granting of the applicant's request. Accordingly, I find that consent in writing dis-applies the exemption in section 28(1) of the Act by virtue of section 28(2)(b) and that the  records relating to the applicant and/or his son fall to be released subject to further consideration below of those parts of the records which contain personal information relating to a third party. The records to be released are identified on the schedules attached to this decision which form part of it. 

(2) Personal information relating to parties other than the Applicant and his son

The consent obtained does not extend to personal information relating to -----. Personal information relating to this individual is to be found either on its own or inextricably linked with the personal information of the applicant and his son in some of the records. I have decided to examine all of the references to this third party as it is not feasible to separate out certain references to --- (e.g.personal health references which the applicant says that he does not require) which may or may not be relevant to the HSE's consideration of the situation of the applicant's son. In this context, I wish to explain my approach to the granting of access to parts of records.  Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record.  Section 13 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, I take the view that neither the definition of a record nor the provisions of section 13 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, I am not in favour of the cutting or "dissecting" of records to such an extent.

In contacts with my staff in the course of this review, the third party involved clarified that [this person] did not wish to consent to the applicant having access to personal information relating to ----. Therefore, such information is exempt from release under section 28(1) of the FOI Act unless another of the limited exceptions to this provision of the FOI Act is found to apply. Potential release of such information is also provided for at section 28(5)(b) of the FOI Act, in a situation where release of the information would "benefit the individual" to whom it relates. I do not see - nor has it been argued in submissions - how the release to the applicant of information which relates to ---- would be of any benefit to [this person] and, accordingly, I find that no right of access to the portions of the records containing that information arises under section 28(5)(b) of the FOI Act.

Section 28(5)(a) provides for the release of personal information relating to third parties where the public interest that the request should be granted outweighs the right to privacy of the individual(s) to whom the information relates. To apply section 28(5)(a), it is necessary to identify the various public interests served by the release of the particular record and assess whether they outweigh the public interest in protecting the right to privacy of the individual(s) to whom the information relates.

I find the following public interest factors in favour of the release of the records arise in this case:

• the public interest in individuals being able to exercise their rights under the FOI Act in order to enhance their understanding of the reasons for courses of action taken by a public body;
• the public interest in increasing the openness and transparency of decisions taken by public bodies in relation to the provision of care and/or the welfare of young people; and,
• the public interest in members of the public knowing that information held by public bodies about them is accurate.

Under section 28(5)(a), privacy rights should 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. Weighing against release is the very strong public interest in protecting privacy rights, which is reflected in the language both of section 28 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"). Furthermore, the right to privacy has a Constitutional dimension as one of the unenumerated personal rights under the Constitution. 

In weighing up the relative strengths of the opposing public interests, an attempt must be made to measure the actual benefit to the applicant which would result from the release of the records. Clearly, the applicant is dissatisfied with the HSE's conduct of an investigation affecting him and his family. A key consideration here whether he is likely to be disadvantaged by the withholding of those parts of the records in question. The applicant states that the withholding of information will be viewed as ''an attempted cover up on the part of the HSE". He questions the judgement of HSE staff involved in his case and the conduct of a child protection conference. While the FOI Act prohibits decision makers from taking into account the applicant's reasons for requiring these records, I am taking these arguments as submissions relevant to the public interest in favour of granting the request i.e. the public interest in the applicant's knowing as much as possible of what is in the records to enable him to understand the conduct and outcome of the HSE's involvement with his family.

It is the case that the parts withheld constitute a small proportion of the overall records which fall to be released on foot of this decision. Of that proportion, a substantial part relates to personal health matters of which the applicant says he is already aware and has no objection to such information being withheld. Where feasible and in accordance with section 13 of the FOI Act as explained above, the records can be redacted so that removal of the third party's personal information does not prevent the release of those parts of the records pertaining to the applicant and his son.  Taken together with the content of the third party information, the applicant's involvement with his son and with the HSE in the investigation of the allegations the subject of the records, I do not consider that, in the circumstances of this case, the public interest in the applicant having access to ------'s personal information is so strong as to require a breaching of [this person's] privacy rights. In my view, the fact that the applicant knows the nature of the complaint which led to the investigation, the progress and outcome of the investigation, weakens the public interest in his having access to the third party's  personal information in this case. On balance, I do not consider that the release of the portions at issue would add to an understanding of what happened to any significant extent.

Under FOI -  unlike the situation where records are obtained in the course of legal proceedings -  records are released without any restriction as to how they may be used and, in effect, FOI release is regarded as release to the world at large. Accordingly, I find that the section 28(1) exemption and/or the exemption for joint personal information in section 28(5B) applies to those parts of the records identified in the attached schedules.

Owing to my findings under section 28 of the FOI Act, it is not necessary for me to consider any of the other provisions of the Act. However, I should add that if I had found that the applicant was entitled to have access to the personal information of ---- under section 28, I would probably have found it necessary to examine whether any of the information was given to the HSE in confidence, whether section 26(1) of the FOI Act applied and whether the public interest would, on balance, be better served by granting than by refusing the request [section 26(3)].

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I affirm the decision of the HSE in respect of the parts of the records containing personal information relating to a third party as detailed in the schedules to this decision; I vary the decision of the HSE on the remaining records the disclosure of which has been consented to by the individual to whom the personal information relates and I direct the release of those records to the applicant. Specific directions to the HSE in relation to the records to be released and the parts to be withheld are contained in the schedules.

Appeal

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 eight weeks from the date of this decision.    

Emily O'Reilly

Information Commissioner

17 August 2009