The Senior Investigator found that the HSE is justified in its decision that (1) the withheld parts of 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; and (2) audiology records are exempt from release under section 10(1)(a) of the FOI Act on the basis that such records do not exist or cannot be found after reasonable steps to ascertain their whereabouts have been taken. She affirmed the HSE's decision.

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 records held by the HSE on the basis that certain records and parts of records are exempt from release under various provisions of the FOI Act.

Date of Decision: 13.01.2010

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

Background:

The Applicant made an FOI request which was received by the HSE on 29 January, 2009 requesting (1) access to personal information held by the Health Service Executive at Hospital A, and (2) documents held at Hospital B, to include results of an audiology test. The HSE, in a late decision dated 27 February, 2009 on part (1) of the request , released 748 records with the exception of small parts of records numbered 4, 87-89, 311 and 352, which were withheld under sections 26 and 28(1) of the FOI Act. On 17 February, 2009 the Hospital B granted full access to 102 records in relation to Part (2) of the request. On 21 March 2009 the Applicant wrote to the HSE seeking an internal review of the decision in relation to Part (1) of his request. The original decision was upheld in a late internal review decision dated 20 April, 2009. The Applicant wrote to the Commissioner on 5 May, 2009 seeking a review of the HSE's decision.

Preliminary Matters

I note that Ms Anne O'Reilly, Investigator of this Office, wrote to the Applicant on 23 September, 2009 setting out her preliminary views on this case and that the Applicant responded on 8 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 both the Applicant and the HSE, the content of the records and the provisions of the FOI Acts.

I note that the Applicant, in his response to this Office's preliminary views letter, raised the following issues:

(1) "No electronic storage data, bar x-rays, .....have been released. ...ICD codes of medical diagnoses are recorded electronically by HSE, and I wish to have access to this data."

(2) " Records and appointments made with audiology clinic in Hospital B ..... seem to be missing."

In the course of this review this Office contacted the HSE in relation to the above matters and the HSE recently informed this Office that:

(1) it had discovered additional records concerning ICD codes that were held in both hospitals and copies were released to the Applicant on 23 December, 2009; and

(2) after additional searches for records concerning Audiology clinic appointments, no further records have been identified. The HSE also confirmed that Hospital A has no record of requesting such appointments.

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

The Applicant, in his internal review request, and again in his review application to this Office sought (1) full release of the redacted records, and (2) to have a medical diagnosis in his personal file reviewed. In our acceptance letter, dated 10 June, 2009, the Applicant was advised that the Information Commissioner does not have the authority nor the expertise to amend a medical diagnosis. The Commissioner's role is to determine whether all existing records requested were released and if not, whether the HSE interpreted the FOI Act correctly and was justified in refusing access to certain records.

The Applicant in his response dated 26 June, 2009 indicated that he understood and accepted the scope of the Commissioner's remit.

Accordingly the scope of this review is confined to examining:

(1) 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 4, 87-89, 311 and 352; and

(2) whether the HSE is justified in refusing to release records in relation to audiology appointments on the basis that they do not exist or cannot be found.  

Submissions

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Findings

(1)Records numbered 4, 87-89, 311 and 352

In its decisions the HSE relied on sections 26 and 28 to withhold (redact) parts of the records sought by the Applicant. In the circumstances of this case it appears that the provisions of section 28 are most relevant to the records.

The information which has been redacted in the above-mentioned records consists of the names of other patients and references to members of the Applicant's family.

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 FOI Act recognises a very strong public interest in protecting privacy rights and this is recognised both in the language of section 28 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY"). 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. There is a limited number of exceptions to this provision of the FOI Act. One exception is where the person to whom the information relates has consented to its release, as provided for at section 28(2)(b) of the FOI Act. I note that the individuals mentioned in the records have not been asked if they consent to the release to the Applicant of their personal information; and I consider that it would not be feasible or appropriate to do so. 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.

The Public Interest

To apply section 28(5), it is necessary to identify the various public interests served by the release of the particular records as well as those served by the withholding of those records. Relative weights must then be applied to these conflicting public interests and a judgement made as to which set of public interests outweighs the other.

I believe 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 members of 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.

In considering the public interest factors which favour withholding the records, I have taken the following into account:

• the public interest recognised by the FOI Act itself, in protecting the right to privacy of members of the public,
• the public interest in members of the public being able to communicate in confidence with public bodies and without fear of disclosure in relation to personal or sensitive matters.

The Applicant has argued that regard should be had to his own privacy and the fact that the HSE can record material which could be detrimental to him. He said that some parts of the withheld records may be untrue, misleading or inaccurate and that he cannot respond to such documentation without full release. The Applicant's own privacy concerns are relevant only insofar as he made the FOI request in respect of his own personal information and neither this Office nor the HSE would normally sanction release of his personal information to any third party except in exceptional circumstances. The issue here is the personal information of other individuals who are not employed by the HSE and whose rights also have to be considered.

Having considered the limited amount of personal information being withheld , which, as Ms O'Reilly informed the Applicant, comprises other patients' names and references to family members, I am satisfied that the removal of those references does not cause the records to be misleading and would be unlikely to compromise any response the Applicant might make to the records as a whole.

In weighing up the relative strengths of these opposing public interests, an attempt must be made to measure the actual benefit to the Applicant which would result from the release of the redacted parts of the records. The key consideration here is the fact that release of these portions of the records would not add to the Applicant's understanding of his treatment at Hospital A. Furthermore, I consider that, on balance, the Applicant would not be disadvantaged by the withholding of these records. Under the circumstances, I consider that the public interest is better served by protecting the rights to privacy of those persons to whom the information relates, rather than by releasing this information to the Applicant.

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 solely to another party (or parties), would be of any benefit to that party (or parties) and, accordingly, I consider that no right of access to the portions of the records containing that information arises.

As I find that the records in question are exempt from release under the provisions of section 28(1) of the FOI Act it is not necessary for me to consider any other exemptions claimed by the HSE in relation to these particular records.

2. Records of Audiology appointments

Section 10(1)(a)

Section 10(1)(a) provides that:

"A head to whom a request under section 7 is made may refuse to grant the request if

(a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken, ..."

The Applicant sought records relating to an audiology test which he says was carried out at Hospital B on the instructions of the HSE. The HSE having checked with Hospital B and Hospital A has stated that no records concerning Audiology clinic appointments/tests in Hospital B have been identified. The HSE also confirmed that Hospital A have no record of requesting such appointments. The Applicant was unable to provide any further details such as approximate dates to aid in the search for any such records. I have no reason to believe that the hospitals would deny the existence of records if they could be found. In the circumstances, I am satisfied that it is reasonable to conclude that the records in question do not exist or cannot be found and that the HSE is justified in refusing the Applicant's request under section 10(1)(a) 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

13 January 2010