The Commissioner varied the decision of the HSE and found that part of the HSE's decision was justified under section 28 of the FOI Act. She directed the release of record 185-186 with the exception of specified parts which related to the personal information of individuals other than the Applicant and his minor children.

Case Summary

Whether the HSE is justified in its decision to refuse a request, made under section 7 of the FOI Act, for access to record number 185-186 held on the Applicant's family file in the Social Work Department of the HSE. The case was remitted to the Commissioner by order of the High Court (dated 26 June 2006 and amended on 30 March 2009) following the HSE's appeal against the Commissioner's decision in Case Number 020534.

Date of Decision: 10.09.2010

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

Background:

The Applicant wrote to my Office on 21 October 2002 seeking a review of the decision of the HSE to refuse access to certain records on his FOI request for access to his family's file in the Social Work Department of the former Mid-Western Health Board. The relevant public body is now the HSE and I refer to it as such throughout this decision.

On 24 May 2002, the Applicant requested copies of social work files relating to himself, his wife and his children. In its decision of 14 June 2002, the HSE withheld certain records on the basis that they were exempt from release under various provisions of the FOI Act. The HSE, on 18 July 2002, released additional records in its internal review decision, but withheld the remaining records. My Office made a decision on completion of its review on 6 November 2006 varying the HSE decision by directing the HSE to release further records to the Applicant. In that decision, which was preceded by the notification by my Office to the HSE of the Investigator's preliminary view indicating her intention to recommend release of certain records, the designated decision maker directed, inter alia, that record 185-186 be made available to the Applicant for inspection only. Record 185-186 on the HSE file arose from a report made by the Applicant to an Garda Síochána (the Garda) involving his family situation.

On receipt of the decision, the HSE apparently contacted the Garda who objected to the release of the record. The HSE appealed to the High Court against my Office's decision in respect of record 185-186. In the course of those proceedings, my Office, the HSE and the Garda sought to have the matter remitted to my Office for fresh consideration in the light of submissions made by the Garda in the course of the appeal. On 26 June 2008, Miss Justice Elizabeth Dunne directed that the original decision be set aside and that the matter be remitted to my Office. The Applicant later contended that the High Court Order had not been made with his consent. Miss Justice Dunne made a new Court Order dated 30 March 2009 amending the original Court Order to reflect the Applicant's position.

All parties were invited to make submissions to my Office. The Applicant, the HSE and the Chief State Solicitors Office (CSSO), representing the Garda, made submissions on the matter. The Applicant was given the opportunity of commenting on the Garda's objections to release of the record insofar as these could be synopsised without disclosing exempt material (section 43(3) of the FOI Act refers). I note that Ms Alison McCulloch, Investigator (who had not been involved in the original review) wrote to the CSSO and the HSE on 9 June 2010 and to the Applicant on 10 June 2010 setting out her preliminary views and that the HSE and the CSSO did not respond to these views. 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 CSSO, the HSE and the Applicant. Further, I have taken into account the submissions of the parties in the High Court appeal. I have also examined the record in question.

Conducted in accordance with section 34(2) of the FOI Act by the Information Commissioner, Emily O'Reilly.

Scope of the Review

This review is concerned solely with the question of whether the HSE is justified, under the provisions of the FOI Act, in its decision to refuse access to record 185-186 held on the Applicant's family file in the Social Work Department of the HSE.

Submissions

.

Findings

Preliminary Matters

Description of the Record

While I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. This constraint means that, in the present case, the description that I can give of the contents of the record is limited. However, I do not consider that I would be in breach of section 43 of the FOI Act if I was to begin with a very general description of the record at issue which was created in 2001. In the High Court proceedings, it was described by the Garda as an internal operational directive addressed to the Area Administrator and intended to outline information and direct an investigation into allegations made by the Applicant. The bulk of the record contains information given by the Applicant to the Garda together with the Garda's understanding of the family situation. There are references to the Health Board and to statutory provisions. My examination of the record confirms that the content of the record relates primarily to the personal information of the Applicant and his family.

Context of FOI request and Burden of Proof

The decision in this case is not one to which section 34(12)(a) of the FOI Act applies since the Garda were not notified by the public body involved of any intention to release the record in the public interest under section 29 of the Act. Thus, strictly speaking, the onus of justifying the refusal of access falls on the HSE under section 34(12)(b). However, I fully accept that the Garda concerns as expressed in the submissions and in the High Court proceedings must be fully considered and taken into account. If it is the case, based on the content of the record, the statutory provisions and the submissions, including those detailing the Garda interests, that I conclude that one or more of the exemptions in the Act apply, I must find that refusal of access is justified.

I must also consider the Applicant's rights under the FOI Act in relation to access to the record.

It is important to have regard to the extent to which the FOI Act confers on members of the public a statutory right to access records held by public bodies. This is something which the Courts have acknowledged. For example, Mr. Justice McKechnie., in his judgment in Deely v. The Information Commissioner [2001] IEHC 91 (text of judgment is available at www.oic.gov.ie), had this to say about the FOI Act:

"[The Act's] passing, it is no exaggeration to say, affected in a most profound way, access by members of the public to records held by public bodies and to information regarding certain acts of such bodies which touch or concern such persons. The purpose of its enactment was to create accountability and transparency and this to an extent not heretofore contemplated let alone available to the general public. Many would say that it creates an openness which inspires a belief and trust which can only further public confidence in the Constitutional organs of the State.

[...]

[T]he clear intention is that, subject to certain specific and defined exceptions, the rights so conferred on members of the public and their exercise should be as extensive as possible, this viewed, in the context of and in a way to positively further the aims, principles and policies underpinning this statute, subject and subject only to necessary restrictions.....

It is on any view, a piece of legislation independent in existence, forceful in its aim and liberal in outlook and philosophy."

This view of the extensive nature of the rights conferred by FOI has been endorsed by the Supreme Court, in Barney Sheedy v. The Information Commissioner[2005] IESC 35 (text of judgment also available at www.oic.gov.ie), where Mr Justice Fennelly commented:

"The passing of the Freedom of Information Act constituted a legislative development of major importance. By it, the Oireachtas took a considered and deliberate step which dramatically alters the administrative assumptions and culture of centuries. It replaces the presumption of secrecy with one of openness. It is designed to open up the workings of government and administration to scrutiny. It is not designed simply to satisfy the appetite of the media for stories. It is for the benefit of every citizen."

Thus, the underlying presumption of the FOI Act is that requests for access will be granted, subject only to necessary restrictions.

Applicant's submissions

Other than complaints about the delay incurred and querying why my Office might amend the decision given that it had previously directed that he should have access to the record, the Applicant did not make detailed submissions or address the substance of the Garda's objections to release of record 185-186.

HSE submissions

The HSE, in a submission dated 10 December 2008, said that it does not ''seek to deny or contradict in any way the proposition advanced'' by the Garda that the document was on the HSE file ''without lawful authority''.

The HSE asserts that a common law duty of confidence arises ''especially in the light of the attitude'' of the Garda. It argues that access to documents such as the record at issue causes concerns ''related to law enforcement and public safety''.

Garda submissions

In a lengthy submission, the CSSO, on behalf of the Garda, says that the record contains sensitive personal information about third parties and raises a number of important legal issues. The Garda Commissioner wishes to rely on the affidavit and submissions put before the High Court in the appeal proceedings. Much of the submission concentrates on the nature and purpose of the record. It stresses the internal nature of the communication and the differences between this and other documents which would be transferred to the HSE under agreed protocols.

According to the Garda, release of the record would breach the Data Protection Acts.

It is argued that no right of access to the record exists in law, that the Garda is not a public body for FOI purposes and that the HSE should not have had the record in the first place. The word ''held'' must, in the Garda's view, be construed as meaning that the public body has to show that it is legally entitled to have the record. The Garda says that principles of statutory interpretation, the Interpretation Act and relevant case law recognise that an absurd result is to be avoided when interpreting legislation. Such a result, would, according to the Garda, stem from a provision that a record held by the HSE in the circumstances pertaining here could be considered for release under the FOI Act.

In the event that its argument that the FOI Act does not apply at all is not accepted, the Garda goes on to claim that several exemptions operate to require me to refuse access to the record. The Garda submits that section 32 of the FOI Act applies because, in its view, disclosure of the record is prohibited by the Data Protection Act 1988. It says that the relevant data processor is not the HSE but the Garda.

In addition, the Garda argues that section 23(1) of the FOI Act prohibits disclosure of the record on the basis that this could reasonably be expected to prejudice or impair the enforcement of obligations under the Data Protection Act. It states that the '' internal document'' at issue, could , if disclosed, interfere with the methods of investigation and operations of the Garda.

In relation to section 28 of the Act, the Garda submits that the content of the record is exempt and that the public interest against disclosure outweighs the public interest in granting the Applicant's request. In addition to the arguments concerning the personal information of individuals other than the Applicant, it is submitted by the Garda that there is a public interest in the Garda's position being accorded a significant and pre-eminent position when assessing any competing interests involved.

Is Record 185-186 held on HSE File?

In its submission, the CSSO, on behalf of the Garda, contends that documents such as record 185-186 are created and used by the Garda for internal purposes only and that the HSE is in ''unlawful'' possession of the record.

In my view, the relevant provisions of the FOI Act are contained in section 6(1) of the FOI Act. I also draw attention to the definition of 'record' at section 2 of the Act, the provisions of section 2(5)(a) in relation to records held and to the Act's Long Title which makes reference to ''information in the possession of " public bodies and records ''held by such bodies''. I also refer to section 46 of the Act which lists records to which the Act does not apply.

Section 6(1) of the Act provides that

"Subject to the provisions of this Act, every person has a right to and shall, on request therefor, be offered access to any record held by a public body and the right so conferred is referred to in this Act as the right of access."

I accept, as Ms McCulloch did, the evidence of the Garda involved that there is a question over how the HSE came to have record 185-186 and that it would appear that it had not been ''officially'' sent to the HSE. The HSE has made no effort to elaborate on how it came to have the record. However, apart from the assertion that what happened is an offence under the Data Protection Acts with which I deal below, I have difficulty in accepting that the transmission of the record whether by mistake or otherwise was ''unlawful''. It seems to me that no information has been put before me that might lead me to conclude that the HSE's possession of the record and its filing it on the file of the Applicant to whom it related was in any way a fraud or that the record had been obtained through criminality. At most, it appears that the passing on of the Garda report might be seen as irregular. However, there is no question of its being irrelevant to the Applicant's file and it certainly falls within the scope of his FOI request.

The record is filed on the Applicant's family file in the Social Work Department and is therefore held by a public body - the HSE. The information is, for the most part, that conveyed by the Applicant or his representatives. Only small parts relate to third parties. Some elements of the record state statutory provisions but it does not, on the face of it, include confidential legal advice given to the HSE or the Garda by their professional legal advisors. The record was apparently filed with the other HSE records on the family in the normal way. The CSSO says that the HSE does not have lawful possession of the record. The circumstances as to how the record at issue came to be on the HSE file is not relevant to my review since its provenance or background is not a matter which I have jurisdiction to consider under the FOI Acts. Even if I were to accept that the placing of the record on the file was unapproved or unauthorised, this would not change the FOI position. For a requester to have a potential right of access to a record, all that is necessary is that the record be "held" by a public body prescribed under the FOI Acts of which the HSE is one.

The types of records prescribed as falling outside the FOI Act and to which the FOI Act does not apply are those set out in section 46 of the Act. I cannot see how record 185-186 comes under any of the categories listed.

The word "hold" means "the action or fact of having in charge, keeping, guarding, possessing, etc.; keeping, occupation, possession; defence, protection, rule." (Oxford English Dictionary). With respect to the arguments of the CSSO that an absurd result would be the outcome if 'held' was interpreted literally in relation to the record at issue, I do not accept that this would be the case. In my view, it is neither necessary nor practical for a decision maker, including the Commissioner on review, to seek to establish the provenance of a record, which, on the face of it, relates to the requester's personal information and is identified by a public body as being within the scope of the FOI request. Public bodies and other state organisations share information on an ongoing basis and it would be neither desirable nor feasible for decision makers to have to have regard to whether possession of the record might be in breach of any agreed protocols or procedures before proceeding to apply the other provisions of the Act. It seems to me entirely possible that records created by one entity might regularly find their way onto the file of an individual in a public body without such transmission having been explicitly authorised. However, that does not remove the record from the scope of the FOI Act.

I realise that in this case, the Garda, who were not consulted in relation to the original request, has now and in the course of the High Court appeal brought to attention its concerns about the record and the question of how it came to be among the many records held by the HSE relating to the requester. Therefore, this case is unusual in that the provenance of the record is being highlighted as central to the review. Nonetheless, I must assume that the legislature did not intend to have a situation where there was uncertainty as to what records were actually held and being considered for release by a public body on the basis that a third party, including a public body not scheduled as being subject to the FOI Act, might afterwards argue that the record was 'unlawfully' held or irregularly passed on and should have been assessed differently from any of the other records held by reason of who created it or the circumstances of its transmission to the body by which it is held.

I accept, of course, that the Garda is not a public body for FOI purposes. It is frequently the case that records created by public bodies or others who are not subject to the FOI Act are transmitted to and held by other public bodies who are scheduled for FOI. My Office would come across records created by the Garda on e.g. Department of Justice, Equality and Law Reform files, HSE social work files or local authority housing files. In assessing whether the Applicant has a right of access to such records under the FOI Act, the decision maker is restricted to considering whether any of the exemptions set out in the FOI Act apply to the record at issue.

My starting point is therefore that the Act gives the Applicant a potential right of access to this record unless specific provisions are found to apply to exempt it from release.

Section 28 - Personal Information

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".

Section 28(5B) of the FOI Act provides:

(5B) Notwithstanding paragraph (a) of subsection (2), a head shall, subject to paragraphs (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 Applicant, also involve the disclosure of personal information relating to an individual or individuals other than the requester.

I note that, following the Supreme Court decision in NMcK v the Information Commissioner, [2006] IESC 2, there is a rebuttable presumption of parental primacy under the Constitution in relation to access by parents to personal information relating to their minor children. I accept that the Applicant would be entitled under section 28(6) and regulations made thereunder, to access the small amount of personal information relating to his children that appears in the record. Information such as names of Garda, social workers and other professionals acting in the course of their duties would not be personal information within the definition in section 2 the FOI Act.

In the circumstances of this review, I accept that parts of record 185-186 identify and disclose the personal information and joint personal information (personal information relating to both the Applicant and other individuals) of third parties. These parts are:

1) Paragraph two - first sentence

2) Paragraph two - details of address in second sentence

3) Paragraph three - all (two sentences)

4) Paragraph four - last sentence from after "while..." to end

5) Paragraph five - all of second sentence

6) Paragraph eight (page 2) - fourth sentence,

7) Paragraph nine (page 2) - name after "on behalf of...".

The FOI Act provides strong protection for personal information where it is sought by a person other than the person to whom it relates. From my examination of the record, I note that some of the information relates solely to persons other than the Applicant and his children and that some of the information in this record is personal information about the Applicant which is closely intertwined with personal information about other parties.

The third party personal information is, on the face of it, exempt from release under section 28 of the FOI Act. There is a limited number of exceptions to this provision of the FOI Act. One exception is where the person (or persons) to whom the information relates has consented to its release, as provided for at section 28(2)(b) of the FOI Act. Consent to release their details has not been received from the other persons concerned and it would not be appropriate to seek such consent in the circumstances. Release of such information is also provided for at section 28(5)(b) of the FOI Act where release of the information would "benefit the individual" to whom it relates. I am not convinced as to how the release of information which relates to the other parties would be of any benefit to those persons.

Section 13 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. I think that this is a case in which it is feasible and not misleading to redact the record so as to remove exempt information. I note also that the information is, for the most part, that imparted by the Applicant himself.

The Public Interest - Section 28(5)

A further exception requires examination. 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. Clearly, there is a 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 and the public knowing how a public body performs its functions and being able to form an opinion as to whether those functions are being properly discharged. 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.

Having considered the matter carefully, I am not satisfied that the public interest served by the release to the Applicant of the parts of the records relating to personal information of others is of sufficient weight so as to displace the right to privacy of the individual(s) concerned. I say this having regard to the fact that release of information under FOI, unlike release during Court proceedings, must be taken to be unrestricted or ''release to the world at large''. Disclosure of the information about other persons, already known to the Applicant, would not advance his understanding of the issues or serve any public interest in his knowing more about how the HSE dealt with his case. Therefore, I find that section 28(5)(a) does not apply in this case and that the parts of the record identified above are exempt from release by virtue of section 28(1) and/or section 28(5B) of the FOI Act.

In relation to the argument of the Garda in relation to the balance of the public interest generally, I would point out that section 28(1) - the general prohibition on release of personal information - is disapplied by subsection (2)(a) of section 28 where the information concerned relates to the requester concerned except where certain types of information the release of which might prejudice the health or well being of the requester are concerned. This means that there is no application of the public interest balancing test in section 28 in respect of my consideration of those parts of the records relating only to the Applicant's personal information.

The Data Protection Act

According to the Garda, release of the record would contravene the Data Protection Acts. The Data Protection Acts 1988-2003 apply to personal data only and limit disclosure of such data to persons other than the individual whose data is held. As I understand it, the aim of the Data Protection Act is protection of privacy of personal data relating to individuals. I can find nothing in the Data Protection Acts which prevents the use of the FOI Act to assess personal data. The Data Protection Commissioner has published cases in which he expresses the view that sections 2(1)(c)(i) and 2(1)(c)(ii) of the Data Protection Acts, taken together, amount to a general requirement that individuals be made aware at the time of data collection of the purposes to which their data will be put and that the data may not be used without their authorisation for different purposes. It is recognised that certain disclosures are authorised. Section 1(5)(a) of the Data Protection Acts provides that:

"[a] right conferred by this Act shall not prejudice the exercise of a right conferred by the FOI Act."

Further, section 8(e) of the Data Protections Acts sets out an exception to the prohibition on disclosure of personal data required by an enactment or rule of law. I consider that release of records under FOI amounts to disclosure required by an enactment. My predecessor took this approach in Case No 000193 - X and the South Eastern Health Board (on www.oic.ie).

It is not for me to assess the use to which the Applicant's own personal data has been put. In relation to concerns about the personal data of others, my finding above that the personal information relating to individuals other than the Applicant and his minor children, is exempt from release under section 28 of the FOI Act means that their personal data as it appears in the records is protected. Without prejudice to any decision made under that Act, it seems to me that the Applicant would normally be entitled to access his own personal data under the Data Protection Acts subject to any applicable exemptions or exceptions laid down in that Act.

The Garda submission is that section 22 of the Data Protection Acts makes it an offence for a person to disclose personal data without prior authority of the data controller. It is contended that the reasoning applied in Case No 000193 does not apply here because the data processor is the Garda and not the HSE. It seems to me that for an offence to occur under section 22, personal data of a person other than the individual whose data is held would have to be involved and that the disclosure would have to occur outside of any authorised or statutory basis. It is not within my jurisdiction to make a finding as to which body is the relevant data processor. It may well be that copies of the record are held by different data controllers. I consider that section 45 of the FOI Act is of importance here since it provides, in effect, that the granting of access to a record under FOI is not an act in respect of which, or in respect of the consequences of which, any civil or criminal proceedings can lie in any court.

Section 32- Prohibition on disclosure

Ms McCulloch informed the Garda that she did not agree with the position that disclosure of the record is in any way unauthorised under FOI and thus, her opinion was that section 32 of the FOI Act does not apply to exempt the record. I agree that the release of the record is not prohibited by any enactment. The Garda's view that the request should be refused on the ground that access is prohibited under the Data Protection Acts 1988 and 2003 is linked to its position that the record is exempt under section 32(1)(a) of the FOI Act. That section provides that a public body shall refuse to grant a request if the disclosure of the records concerned is prohibited by any enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that schedule).

Section 8(e) of the Data Protection Acts provides that any restrictions in the Acts on the processing of personal data do not apply if the processing is required by or under any enactment or by a rule of law or order of a court. As section 6 of the FOI Act creates a right of access to certain records subject to the other provisions of the Act, then any restriction on disclosure under the Data Protection Acts does not apply if a right of access to the records at issue exists under the FOI Act. This means that in this case, section 32(1)(a) of the FOI Act cannot apply since I have already found that, subject to my consideration of any exemptions which may apply to all or part of the record, a right of access exists to it as it is held by a public body under the FOI Act.

Section 23- prejudice to investigations or methods

The parts of Section 23(1) identified as relevant by the Garda provide that:

"(1) 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 or impair-

(i) the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid,

(ii) the enforcement of, compliance with or administration of any law,

In Case No. 98104 - The Sunday Times Newspaper & Others and the Department of Education and Science (on www.oic.ie) - my predecessor's decision explained his approach to interpreting the words "could...reasonably be expected to...." in the context of section 21 of the FOI Act. He stated that "in arriving at a decision to claim a section 21 exemption, a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur." In Case No. 99017 - Mr. ABM & Others and the Office of the Revenue Commissioners (on www.oic.ie) and in other later cases, my Office adopted this approach in relation to section 23(1)(a) also. It is clear from the submissions that the Garda are aware of my Office's approach. In this case, the HSE and the Garda have not specifically identified the manner in which they expect any of its functions listed in section 23(1)(a)(i-ii) to be prejudiced (that is to say, injured or potentially injured) or impaired (that is to say, damaged or weakened) by the release of the disputed record. The enforcement obligations identified as being relevant are those imposed under the Data Protection Acts.

I accept that, broadly speaking, the release of e.g. detailed operational plans or problems encountered with suspects or operations could reasonably be expected to impair Garda investigations even if it were not certain that harm would occur. If any relevant Garda investigation from 2001 has since been completed, I would still be prepared to give serious consideration to any harms identified to related, ongoing matters if links could be established between such harms and the content of a record. However, I have no information as to the status of any relevant Garda inquiry into alleged offences. For this exemption to apply, it is clearly not sufficient for the record to have been created in the context of investigations or law enforcement.

It is asserted by the Garda that disclosure of the content of the record could interfere with the methods of investigation used and the operations undertaken. It is appropriate here to refer to the comments of Mr Justice Kearns in the Supreme Court judgment in Sheedy v Information Commissioner [2005] IESC 35. In referring to section 21(1) of the FOI Act, which provides for the refusal of records that, if released, "could ... reasonably be expected to prejudice" particular functions of a public body, Kearns J. said that "the onus to produce evidence of prejudice fell on the Department and in the absence of same the Commissioner was entitled, under s. 34 of the Act of 1997, to hold against the Department. A mere assertion of an expectation [of prejudice] ... could never constitute sufficient evidence in this regard...".

The record mentions a complaint made by the Applicant, sets out contacts with the HSE and others, indicates that named member(s)of the Garda should investigate and that other member(s) are aware of the matter. There is also some information on the role of the Garda in certain matters and on statutory provisions. I find it difficult to see how release of this information would lead to the harmful consequences envisaged by section 23(1)(a). The record was created in 2001 so that any possible prejudice is unlikely owing to its context and the fact that most of the content emanates from the Applicant/requester himself or from his representative. It seems to me that the statutory position in regard to the situation would be generally known or easily established and that no specific operational plan is disclosed in relation to any investigation, prosecution or enforcement or the methodology of the Garda over and above that already known to the Applicant and the public. In other words, I have insufficient information on which to base a finding that it is reasonable to expect that if the record was released to the Applicant harm would be caused to the methods used by the Garda to detect or investigate offences, to prosecute crime, to enforce the law or to the lawful methods employed to do this. I am also taking into account the nature of the information already found to be exempt under section 28.

The CSSO was asked in Ms McCulloch's preliminary views letter, if the Garda wished to pursue the section 23 argument, elaborate on the fears of prejudice or impairment of either any investigation or the methods /procedures employed and point to any particular part of the record which might disclose sensitive operational matters. The CSSO did not respond to the preliminary views letter. When contacted by telephone, the CSSO confirmed that it would not be making any further submissions.

It is also the view of the Garda that release of the record "would prejudice the enforcement of the protections under the Data Protection Act 1988". My position on the Data Protection Act arguments has been discussed above. As detailed above, my conclusion is that contravention of the Data Protection Acts does not arise. Therefore, I do not accept that disclosure of the record (subject to the redaction of third party personal information) would prejudice or impair the operation of another enactment as argued by the Garda.

I find that section 23(1) (a) (i) and (ii) does not apply to exempt the withheld record.

Section 26 - Information obtained in confidence

Section 26 states that:

"(1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if_

(a) the record concerned contains information given to a public body in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or

(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law.

(2) Subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, a public body or a person who is providing a service for a public body under a contract for services) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services.

(3) Subject to section 29, subsection (1) (a) shall not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned."

In the original decision dated 6 November 2006, Mr Fintan Butler, Senior Investigator of this Office said:

''The Board's submissions in respect of these records is that, as they were created by An Garda Síochána, it would be reluctant to release them as "the Gardaí could have problems forwarding us information for future cases."

I do not agree with this argument - the Gardaí are professionals who have a duty to provide such information to the Board and other relevant public bodies. This is not a situation where release of the records might cause an informant to be reluctant to come forward in the future. I find that section 26(1) does not apply to these records.''

It appears that the Garda in its submission takes the view that a duty of confidence cannot be owed to the HSE in that the document in question was not given to it ''in a lawful manner'' . It requested an opportunity to present its views on section 26 if I considered it appropriate. In the preliminary views letter Ms McCulloch invited a submission on section 26, if the Garda position was that this section would apply to exempt the record. The CSSO did not take the opportunity to respond to the preliminary views letter.

I note that the HSE submission stated that it is still relying on section 26 and that the information is confidential. It has not been clarified whether section 26(1)(a) or section 26(1)(b) is the exemption applicable. Neither has it been stated to whom any duty of confidence is owed nor has the issue of whether what the Applicant told the Garda can be held to be confidential vis a vis the Applicant himself been addressed. The third party's information is already, in my opinion, protected by section 28. In relation to duties of confidence being owed to parties other than individuals who are not public servants, section 26(2) provides that the confidentiality exemption does not apply to a record prepared by a staff member of a public body. The HSE did not respond to the views put forward in the preliminary views letter.

I note also that, as accepted in the Garda submission of 28 July 2008, it is difficult to see how it can be contended that the tests for this exemption or indeed the common law in relation to confidentiality are met given the assertion that the record was not given to the HSE in an authorised fashion or its transmission was, according to the Garda, ''unlawful''. Accordingly, I find that section 26 does not apply to record 185-186.

Section 22(1)(a) -Legal Professional Privilege

Among the exemptions originally claimed by the HSE was section 22(1)(a) which protects from disclosure records qualifying for legal professional privilege. This does not appear to have been pursued in this review by either the HSE or the Garda although it is mentioned in the HSE submission. To avoid any confusion on the matter, I consider that the record does not disclose confidential professional legal advice sought or obtained by the HSE or any person other than the Applicant as client. Neither is the record a confidential communication between client , legal advisor or third party, the dominant purpose of which is preparation for pending or contemplated litigation. Thus, it is my finding that section 22(1)(a) of the FOI Act cannot apply to the record.

Summary of Findings

For the reasons detailed above, I find that the only parts of the record exempt from release under the FOI Act are those parts containing personal information relating to individuals other than the Applicant and his minor children. In regard to the remainder of record 185-186, I find that the refusal of access has not been justified under the FOI Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997 as amended, I hereby vary the decision of the HSE in relation to record 185-186 on the Applicant's family file in the HSE and direct the HSE to release a copy of the record to the Applicant with the parts identified above deleted on the basis that they are exempt under section 28 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 on which notice of the decision was given to the person bringing the appeal.

Emily O'Reilly

Information Commissioner

10 September 2010