The Senior Investigator found that the HSE is justified in its decision that the records are exempt from release in that section 28(1) of the FOI Act applies and the public interest in granting the request is not outweighed by the public interest that the right to privacy of individuals be upheld under section 28(5) of the FOI Act. She affirmed the HSE's decision.

Case Summary

Whether the HSE is justified in its decision to refuse access to parts of records the subject of a request made under section 7 of the FOI Act on the basis that they are exempt from release under section 28 of the Act.

Date of Decision: 18.12.2009

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

Background:

The Applicant made an FOI request to the HSE on 10 March 2009 requesting access to records covering the time that she worked with the HSE from 31 March 2000 until 6 June 2008. The HSE, in a late decision dated 4 June 2009, released the records with the exception of small parts of records numbered 27 and 28,  which were withheld under section 28(1) of the FOI Act. On 17 June 2009 the Applicant wrote to the HSE seeking an internal review of this decision.  The original decision was upheld in the internal review decision of 16 July 2009. The Applicant wrote to the Commissioner on 11 September 2009 seeking a review of the HSE's decision.

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 the Review

This review is concerned solely with the question of whether the HSE is justified, in terms of the provisions of the FOI Act, in its decision to refuse access to the withheld portions of records numbered 27 and 28.

Submissions

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Findings

Preliminary Matters

The Applicant, in her letter of 11 September 2009 to this Office, requested a copy of ''a reference via the Director or his representative to Ailsa Hospital in South Ayrshire, Scotland''. According to the HSE, a letter was received from NHS, Ayrshire and Arran, Scotland requesting the Director of Nursing, (name of hospital) to complete and return a form enclosed with the letter. This is referred to in record 1 of the records released to the Applicant. The letter was dated 10 September 2008 and the reference or form is therefore outside the scope of this review as the Applicant restricted her FOI request to records for the period 31 March 2000 to 6 June 2008. In any event, the HSE said that a copy of the form was not retained by it when the form was completed and returned to the NHS, Scotland. The HSE suggested that the Applicant might contact the NHS as regards that record.

Ms Alison McCulloch, Investigator of this Office put her views on the review to the Applicant in her letter of 23 November 2009. We have no record of the Applicant having made a response nor did she agree to withdraw her application. Therefore, I have no option but to close the review with a formal, binding decision.

In carrying out this review, I have had regard to the submissions of the parties, the content of the records and the provisions of the FOI Acts.

Analysis and Findings  

The HSE withheld parts of records numbered 27 and 28 which are included in a three page hand written note. The material withheld refers to a patient at (name of ) Health Centre. The HSE relied on section 28 of the FOI Act to refuse access to these parts of the records.  

Fees

Section 47(6A) (a) of the FOI Act, as inserted by the FOI (Amendment) Act 2003, provides that fees shall be charged for FOI requests and applications for internal review made to public bodies and applications made to this Office for review. Section 47(6A)(b) further provides that:

"(b) A fee under this subsection shall be paid a the time of the making of the request or application concerned and, if it is not so paid, the head concerned or, as the case may be, the Commissioner shall refuse to accept the request or application and it shall be deemed, for the purposes of the Act, not to have been made,"

As the Applicant was advised in this Office's letter of 5 October 2009, the Act provides that fees do not apply to an FOI request, or to a review application to this Office, where "the record or records concerned contains or contain only personal information relating to the requester...".  Specifically, in the case of requests for access to personal information, (with the possible exception of requests pursuant to section 28(6) of the FOI Act, 1997 which involve the personal information of minors, persons with a disability and deceased persons), the fees apply in all cases except where the request is solely for records disclosing personal information of the requester.

The effect of all this is that because the withheld parts of records 27 and 28 contain the personal information of individuals other than the Applicant, a fee would have been payable to the HSE in respect of the original FOI request if the part of the request covering records other than those confined to the Applicant's own personal information was to be validly considered. [I note that a fee for application to this Office was not levied because the late decision by the HSE was deemed to be a refusal under the FOI Act].

It seems to me, therefore, that I would be entitled to limit the scope of this review to the Applicant's own personal information - all such records falling within the scope of her request appear to have been released.  The Commissioner does not have jurisdiction to review matters that are not properly before her. However, for completeness, I make findings below on the exemption claimed by the HSE.

Section 28

Section 28(1) provides that access to a record shall be refused if access would involve the disclosure of personal information (excluding personal information relating to the requester). The effect of section 28(1) is that a record disclosing personal information of a third party cannot be released to another person unless one of the other relevant provisions of section 28 applies, in this case section 28(2) or 28(5).  As Ms McCulloch advised the Applicant, section 28(5) provides that a record containing the personal information of a third party may be released in certain limited circumstances. The exemption could be set aside if (a) 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, or (b) the grant of the request would benefit that individual.

In my view, the granting of the request in this case would not benefit the individual to whom the information relates.  The Applicant has made no case that the public interest favours release of the patient's information in this case. The public interest factors were detailed in the preliminary views letter and I will not repeat them here. I agree with Ms McCulloch's conclusions that the FOI Act recognises a very strong public interest in protecting privacy rights and that, on balance, the public interest in granting access to records containing the personal information of a person other than the Applicant does not, in the circumstances of this case, outweigh the public interest in upholding the right to privacy of the person to whom the information relates. Therefore, I find that the withheld parts of the records are exempt under section 28(1) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act 1997, as amended, I hereby affirm the decision of the HSE in this case.

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 decision.

Elizabeth Dolan

Senior Investigator

18 December 2009