Case Case 090104. Whether the HSE is justified in its decision to refuse a request for access to a copy of videotapes of assessments of the applicant's children made under section 7 of the FOI Act on the basis that the records are exempt from release under section 28 of the FOI Act. The HSE also referred to section 12 (2)(b)(iv) of the Act in relation to its provision of the records for inspection as opposed to granting access in the form of copies as required.

Case Summary

The Senior Investigator found that the HSE is justified in its decision under sections 12 and 28 of the FOI Act to refuse access to the records in the form sought, ie copies of the records on the basis that the records contain personal information of third parties and that, on balance, the public interest in granting the request is outweighed by the public interest in safeguarding the privacy rights of individuals.

Date of Decision: 20.11.2009

Review Application to the Information Commissioner under the Freedom of Information (FOI) Acts 1997 & 2003

Background:

The applicant wrote to the HSE on 4 April 2008 seeking access to a copy of the videotapes of assessment for her (number of) children that were carried out in 2006 and a copy of the three assessments carried out in February and March 2008. In its decision of 25 September 2008, the HSE said that the request for access to the written assessment reports was still being processed and that the decision referred only to the copies of the videotapes which it refused under sections 21, 23, 26 and 28 of the FOI Acts. The applicant applied for internal review of that decision. In its internal review decision of 10 February 2009, the HSE varied its original decision by granting the applicant access to view the videotapes but refused access to a copy of the tapes. It also said that a copy of the written assessment reports had been released. The applicant applied to this Office for a review of the HSE decision on 21 April 2009.

I note that Ms Alison McCulloch, Investigator of this Office, wrote to the applicant on 8 October 2009 setting out her preliminary views on this case and that a response was received on 28 October 2009. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

In conducting this review, I have had regard to the submissions of the HSE, as well as those of the applicant (including those made to the HSE), additional information and clarification provided by the HSE at the request of this Office and to the provisions of the FOI Acts. Regard has also been had to the contents of the records at issue.

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Scope of Review

This review is concerned solely with the question of whether the HSE is justified in its decision to refuse access to a copy of the videotapes of assessments of the applicant's children on the basis that the records are exempt from release under various sections of the FOI Act.

Submissions

.

Findings

Analysis and Findings

Before proceeding to examine the records in the context of the relevant exemptions, there are some initial points which I wish to address. The applicant said that she is extremely unhappy and dissatisfied with how the assessments were carried out and she questioned the integrity and ethics of the staff involved. At the outset, I should state clearly that it is not part of the functions of the Information Commissioner to adjudicate on how public bodies perform their functions generally. I must stress that it is not the role of this Office to comment on, or to investigate, the methods employed by HSE staff in conducting interviews with the children.

I should say here also that I am conscious of section 8(4) of the FOI Act which requires that a decision maker, in deciding whether to grant or refuse a request under section 7, shall "[s]ubject to the provisions of this Act" disregard any reasons a requester might have for the request.

Manner of Access- section 12 of the FOI Act

The HSE's decision makes reference to section 12 of the FOI Act which deals with cases where a public body decides to give access to a record in a manner other than that sought by the requester. It says that it is relying on section 12(2)(b)(iv) of the FOI Act:

"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."

Section 12(3)(b) makes clear that, where paragraph (2)(b) is being applied, access shall be granted in such other form or manner as may be agreed with the requester or, in default of such agreement, in such form as the public body considers appropriate.

Effectively, the HSE's position is that it has refused to grant access to the tapes in the manner sought by the applicant i.e. the provision of copies. It argues that sections 21, [functions and negotiations of public bodies], 23 [law enforcement and administration of justice}, 26 [information obtained in confidence] and 28 [personal information are interests which would be prejudiced if the records were to be released in the manner sought.

Part Release - Section 13

Before addressing the question of personal information, I think I should explain my approach to the granting of access to parts of records. Section 2 of the Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 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, in the case of written records, I take the view that neither the definition of a record nor the provisions of section 13 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, and depending on the contents of the records and the substance of the possible extracts, I am not in favour of the cutting or "dissecting" of records to such an extent. I consider that, in this case, the provision of an edited version of the tapes to the applicant for viewing would not be practicable and would also be potentially misleading because much of the content of the children's interviews would have to be seen and heard in context in order for it to be meaningful. This difficulty is compounded by the fact, as Ms McCulloch pointed out in her preliminary views letter, the tapes contain information that amounts to the personal information of other individuals as well as containing personal information about the applicant and her children. Therefore, I intend to conduct the review on the basis that the granting of partial access to the tapes in accordance with section 13 of the Act is not an option in the circumstances of this case.

Access to personal information of minors

The section 28 protection of privacy discussed later in this decision is not absolute; contained within it is a number of exceptions, one of which is particularly relevant in this case. Section 28(6) provides that:

" 28(6) Notwithstanding subsection (1), the Minister may provide by regulations for the grant of a request under section 7 where:-

(a) the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual... ".

The Minister for Finance has made regulations under section 28(6) in the form of the Freedom of Information Act, 1997 (Section 28(6)) Regulations, 2009(SI No. 387 of 2009 which replaced similar 1999 regulations providing for access by a parent or guardian to the records of minors where this is considered to be in child's best interests.

It is clear that the FOI Act and the 2009 Regulations, envisages that a parent will have access to the personal information of a minor child where the grant of such access is judged to be in the best interests of the minor. Clearly also, this provision involves some encroachment on the privacy rights of the minor but this is justified as being in the best interests of the child. I note that the term "best interests" is not defined or clarified in FOI or other legislation.

Insofar as the HSE has decided that the applicant has a right to view the tapes and have copies of the assessment reports with certain names redacted, it must be the case that it accepts that, in the absence of evidence to rebut the presumption of parental primacy, such a grant of access is in the children's best interests. This is in line with the Supreme Court's findings in N.McK v the Information Commissioner [2006] 1 IRLM 504. I consider that I must apply the provisions of the FOI Act in this case (albeit that the point at issue is the manner of access as opposed to the principle of access) on the basis that the applicant is presumed, as a parent, to have the welfare of her children at heart, to be acting in their best interests and, accordingly, to be entitled in principle to access their information.

However, as Ms McCulloch has pointed out to the applicant, the key issue in this case is that the tapes do not just contain the children's own information but also contain personal information relating to others.

Personal Information and Privacy Interests

It seems to me that section 28 of the FOI Act and the protection of privacy interests are most relevant in this case and it is appropriate that I address this issue first.

Section 28

Privacy is one of the interests protected by Part III of the FOI Act, as envisaged at section 12(2)(b)(iv) of the Act. Specifically, protection for personal privacy is provided for at section 28 of the FOI Act which reads:

"28(1) 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 ... " .

The provision at section 28(5B) of the FOI Act applies to joint personal information:

"Notwithstanding paragraph (a) of subsection (2), a head shall, subject to subsections (b) to (e) of that subsection and subsections (5) and (6), refuse to grant a request under section 7 if, in the opinion of the head, 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. "

The tapes contain information relating to the applicant and her children and to various third parties including the children's father, school friends and family members. They were created in the context of the HSE's performance of its statutory function in relation to child protection and it is fair to say that the main third party identified in the records is the children's father. The applicant submits that, as the children's father's name is not given, he is not identifiable from the records. However, I think there is a probability that given that the records are videotapes, a person viewing it who recognised the children or the circumstances of the case from what is said, would be able to identify the person involved. This would not necessarily be the case where paper records are at issue. In addition, as I have already stated above, I consider that removing the reference to "Dad" or similar is not a viable option in this case. In my view, the information is information about an identifiable individual - the children's father - and is personal information within the definition of section 2 of the FOI Act.

There is no record within the scope of this review which relates solely to the applicant or to the applicant and her children. The information relating to the applicant and her children in the records under review is inextricably linked to that of others - primarily to that of the children's father - so that it is joint personal information which cannot be released to one of the individuals to whom it relates unless one of the other relevant provisions of section 28 apply. I find that section 28(1) and section 28(5B) apply to the records and that these records are, subject to the other provisions of section 28, exempt.

Exceptions

One of the situations in which personal information relating to a third party may be released is where the individual, to whom the information relates, consents to its disclosure to the requester. I do not believe that this is the type of case in which such a consent should have been sought by the HSE from the children's father. Accordingly, I find that this is not a situation where the prohibition, in section 28(1), on release of personal information of a third party may be lifted under the provisions of section 28(2)(b).

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 how the release to the applicant of information which relates to the children's father would be of any benefit to that individual . Accordingly I consider that no right of access arises to the records containing that information. However I will consider the relevance of section 28(5)(a) below.

Section 28(5)(a) - The Public Interest

Section 28(5)(a) of the FOI Act provides that, notwithstanding section 28(1), access may be granted to records where 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. I note that the applicant has made arguments that she is entitled to exercise her right to access records under the FOI Act and that the protection of her children is at issue. The factors which favour the release of the records in this case include:

• 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 including those taken in child care cases;
• the public interest in members of the public knowing how a public body performs its functions and as in this case, how a public body investigates allegations involving children;
• the public interest in increasing the openness and transparency of decisions taken by public bodies;
• the public interest in members of the public knowing that information held by public bodies about them is accurate;
• the public interest in parents being able to exercise guardianship rights in relation to their children where the exercise of this right is facilitated by having access to records relating to their children.

The primary factor against disclosure of the records in this case is the public interest recognised by the FOI Act itself, in protecting the right to privacy of members of the public, especially where sensitive information is at issue. There is a very strong public interest in upholding the right to privacy, something acknowledged in the Long Title to the FOI Act which provides for release of information, under the Act, in a manner which is "consistent with the public interest and the right to privacy". In considering where to strike the balance between the public interest in releasing records and the Act's strong support for the right to privacy, it is reasonable to have regard to other public interest considerations which favour the withholding of the particular records. I have to say here that it is primarily the privacy rights of the children's father that are at issue here owing to the nature and extent of the personal information about him that the records disclose. In this case, I consider the following considerations are also relevant:

• the public interest in members of the public (including children) being able to communicate in confidence with public bodies and without fear of disclosure in relation to personal or sensitive matters;
• the public interest in safeguarding the flow of information to public bodies;
• the public interest in public bodies being enabled to perform their functions effectively particularly where the welfare of children is involved.

The Public Interest and Right to Privacy

The applicant has pointed out that she will take responsibility for the security of the tapes and that the public will not have access to the tapes. I do not doubt her bona fidesin this.However, in the context of the FOI Act, release to any other person is not contemplated by section 28 except in the restricted circumstances outlined above. The exemption makes no distinction as to whether the requester knows, or is related to, the person(s) whose personal information is intertwined with that of the children in the records. In contrast to cases of sexual abuse or sexual assault or to child-care cases heard by the courts, there is no restriction or qualification on the dissemination of information released under the FOI Act which can place no legal or binding restriction on what, despite the applicant's best intentions, could happen to a copy of a record released. In court cases where the in camera rule applies, statutory provisions governing the conduct of such cases allow for the proceedings to be held otherwise than in public or for the exclusion from court of all persons except those directly concerned with the case. Documents furnished in the course of such proceedings may be similarly restricted. These provisions reflect a public interest in protecting the privacy of the persons involved.

The stated purpose of the FOI Act 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 . . . " (my emphasis). I consider that it would contravene the purposes of the Act to allow sensitive records to be released in a manner which would be inconsistent with the public interest and/or the right to privacy. It is my view that the public interest in protecting the right to privacy is a strong one. In the context of FOI, the protection of an individual's privacy is also a public interest and not a matter of protecting private rights.

In making the tapes available to the applicant for viewing, the HSE has obviously judged that the level of invasion of privacy of the third party is lower than that which would occur if copies were to be released. The applicant clearly states that relations between herself and the HSE have broken down and that she is very unhappy with the proposal that a supervised viewing of the tapes be arranged in the HSE's premises. While this is clearly not the preferred solution, it has to be acknowledged that it does go some way towards meeting the public interest in the applicant seeing and hearing what the children said, having an opportunity of viewing how the HSE staff conducted the interviews while at the same time ensuring that any possible breach of third party privacy rights is avoided.

I have to take into account that the applicant has had access to the assessment reports and has the right to view the tapes. In my view, the substance of the information relating to the HSE's involvement with the children has already been disclosed to the applicant or is available through viewing the tapes.

Therefore, having carefully weighed the public interest factors, I have not found that, on balance, the public interest in granting this request for access to the tapes in the manner requested would outweigh the degree of invasion of privacy of the other person(s) concerned. I find that section 28(5)(a) does not provide a basis for releasing these records which I have found to be otherwise exempt under section 28(1) and section 28(5A). I find that the HSE is justified in refusing to provide copies of the tapes in the form requested.

Other Exemptions

Given my finding that the records are exempt under section 28 of the FOI Act, I do not find it necessary to examine the HSE's decision in the context of section 21, section 23 or section 26 which are the other provisions relied upon by the HSE in refusing access to the records. The Commissioner's views and findings on arguments similar to those advanced by the HSE in this case in relation to the section 21, 23 and 26 exemptions can be found in Case Number 050222 (Ms X and Mr Y and a Hospital - published on www.oic.ie). However, I should caution here that the facts and circumstances in that case are distinguishable from those in this one in that the requesters were both parents of the child the subject of the tape and the content of the tape involved was of a quite different nature from that at issue here.

Decision

Having carried out a review under section 34(2) of the Freedom of Information 1997 as amended, I hereby affirm the decision of the HSE.

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 a review must be initiated not later than eight weeks from the date of this letter.

Elizabeth Dolan

Senior Investigator

20 November 2009