The Information Commissioner found that the HSE had not justified its refusal of the request by reference to sections 26 of the FOI Act. She directed the release of the records subject to redaction of one part of the records which identifies a third party and is exempt under section 28 of the FOI Act.

Case Summary

Whether the HSE is justified in its decision under section 26 of the FOI Act to refuse access to records sought under section 7 of the Act. The withheld records comprise a Garda report concerning the Applicant's family.

Date of Decision: 16.03.2010

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

Background:

The FOI request of 28 August 2009 sought access to a report sent by An Garda Síochána to the HSE on foot of an incident in ---- involving the Applicant and her family.

On 22 September 2009, the HSE decided to refuse access to the records on the basis of section 26(1) of the Act - information received in confidence. The decision made no reference to consideration of the public interest as required by section 26(3) of the Act. The Applicant applied for an internal review of the decision. In its internal review decision dated 19 October 2009, the HSE affirmed the original decision stating that the request had been refused because the Garda do not come within the remit of the FOI Act. Again, that decision did not address the public interest.

The Applicant applied to this Office, on 23 October 2009, for a review of the HSE's decision. In conducting this review, I have had regard to the submissions of the HSE and the applicant, the contents of the records and the provisions of the FOI Acts. I have also had regard to the preliminary views which Elizabeth Dolan, Senior Investigator of my Office, sent to the parties. I consider that this case must to be brought to a close by the issue of a formal, binding, decision.

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

Scope of Review

The HSE, in response to queries from my Office, identified two standard notification forms which were attached to the Garda letter the subject of the request. Thus, three records fall within the scope of the request. The HSE also clarified that no report was made directly to Ms Liz Grace of the HSE by the Garda; the only report held is that forwarded to the Child Care Manager.

I note that the internal reviewer in this case seems to under the mistaken impression that records created by the Garda do not come within the scope of the FOI Act since the Garda is not scheduled as a public body. The position is that as the records at issue are held by a public body - the HSE - a potential right of access to them exists.

Submissions

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Findings

Analysis and Findings

Section 26: Information given in confidence

The HSE has made no substantive arguments in support of its position other than an assertion that the records are confidential. My Office put it to the HSE on 1 February 2010 that the tests for the section 26(1)(a) exemption to apply do not appear to have been met. It responded that it had tried to contact the Garda Superintendent involved and that a letter from him would be submitted. In the meantime, it said that a ''Garda Clerk" had stated that the records should not be released because they were ''strictly confidential'' between the HSE and the Garda. No response was received to my Office's advice that the public interest override at section 26(3) must be considered. Given the lapse of time since the HSE was first asked to comment on the review (9 November 2009) and since the preliminary views issued on 1 February 2010, I consider that the HSE has had adequate opportunity to provide submissions in support of its claim.

The underlying presumption of the FOI Act is that requests for access will be granted, subject only to necessary restrictions. I draw attention to section 34(12)(b) of the FOI Act which provides that, in a review, "a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." This places on the HSE the onus of showing, to my satisfaction, that the decision to refuse access to the records is justified in terms of the provisions of the FOI Act.

Section 26(1)(a) requires that a head refuse a request where the record concerned contains information

• given to a public body concerned in confidence and
• on the understanding that it would be treated by it as confidential and
• 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 should continue to be given to the body.

Section 26(1)(b) requires that a head refuse a request where disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment or otherwise by law. The HSE has not claimed that disclosure would constitute a breach of confidence provided for by law as provided by Section 26(1)(b). The issue which I have to consider, therefore, is whether the exemption in Section 26(1)(a) applies.

Having examined the records, I do not accept that the contents of the reports of the incident are of such a sensitive nature as to imply that they were intended to be kept confidential vis a vis the applicant whose family is the subject of the records. Indeed, it seems to me that the Garda must have known that the HSE, in following up the matter, would, at the very least, have to disclose the broad contents of the report to the applicant. This is not a report which discloses the identity of any person giving security related or law enforcement information to the relevant authorities such that section 23 or section 46(1)(f) of the Act might apply. Neither do any of the records disclose personal information about members of the Garda who were acting in their official capacity. It is implicit in the various provisions of the FOI Act that there is no blanket exemption for Garda reports held by public bodies and that, in appropriate cases, such reports may be released. I am not convinced that it can be said that this particular report was given in confidence and on the understanding that it would be kept confidential and I conclude that the HSE has failed to justify its refusal in this case.

Since this conclusion of itself is sufficient and the HSE has made no claims in relation to any future, similar information, I have not gone on to consider whether the other two requirements of Section 26(1)(a), outlined above, are met in this case or whether, under section 26(3), the public interest in granting the request would outweigh the public interest in withholding exempt records.

Section 28

I take the view that the Applicant is entitled to information about herself and her children but that information identifying a third party mentioned in the records should not be released to the world at large under FOI. Therefore, I find that the name of the children's father be redacted from all three records as exempt material under section 28(1). I see no public interest in breaching that person's privacy rights in the circumstances of this case.

Decision

Having carried out a review under section 34(2) of the FOI Act , I hereby annul the decision of the HSE in this case. I direct it to release the records subject to deletion of the name of the third party as discussed above.

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.

Emily O'Reilly

Information Commissioner

16 March 2010