Case 100168

For the purposes of the review decision, only a portion of one record remained at issue. The Senior Investigator varied the decision of the HSE in relation to this record. He directed that access be granted to some of the redacted record and that access be refused to the remaining portion of that record which he found to be exempt from release under Section 28.

Case Summary

Whether the HSE is justified in its decision to partially refuse a request, made under Section 7 of the FOI Act, for access to records held by the HSE on the basis that the withheld records are exempt from release under the provisions of the FOI Act.

Date of Decision: 28.09.2011

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

Background:

On 7 July 2009 the applicant made an FOI request to the HSE seeking access to the records of his stay in a psychiatric hospital from 20 December 2008 to 13 March 2009. It is relevant to note that the applicant's admission to hospital was on an involuntary basis. In its decision of 20 August 2009 the HSE released most of the relevant records and relied on Section 26 of the FOI Act to refuse access to other records/parts of records. The HSE varied this decision by releasing one further record in its internal review decision of 27 May 2010.  The applicant applied to this Office on 14 July 2010 seeking a review of the HSE's decision.

In conducting this review, I have had regard to the submissions made by the HSE, by the applicant and by a third party whose interests may be affected by the release of material relating to that party. I have had regard to the content of the record at issue and also to the provisions of the FOI Act.

Conducted in accordance with Section 34(2) of the FOI Act by Fintan Butler, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Scope of the Review

The HSE identified 295 pages of records relevant to the request and these are referred to in this decision as Records 1 - 295. The bulk of these records were released to the applicant in the HSE's decision of  20 August 2009. During the course of this review, as a result of contacts between this Office and the HSE, it released a further 24 records in full and partially released two records. It emerged that the applicant had already otherwise acquired some others of the withheld records (Records 274,276,277,278 and 280) so these records were excluded from the scope of this review. The applicant also clarified that he is not seeking the release of the remaining redacted part of record 222 which consists of the mobile telephone number of a third party.

Following these developments, the only record remaining in dispute, and which it is necessary to deal with in this review, is Record 219 two portions of which have not been released . This review, therefore, 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 Record 219.

Submissions

.

Findings

Record 219

This record is a note of a telephone call made by a HSE doctor to the applicant's ex-wife seeking details of the applicant's medical history. Two parts of this record have been withheld and I will refer to them as Parts A and B. Part A consists of two sentences and contains information relating to the applicant and another party reported as given by the applicant's ex-wife to the HSE doctor. Part B consists of a reported comment, by the applicant's ex-wife, about her relationship with the applicant. 

The HSE relied initially on Section 26 of the FOI Act as grounds for refusing access to these portions of Record 219. In the course of this review, it  agreed that Section 28 is also of potential relevance.

Section 28

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".

Is the information in the record personal information for the purposes of FOI?

Personal information is defined in Section 2(1) of the FOI Act as:

" information about an identifiable individual that -

(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or

(b) is held by a public body on the understanding that it would be treated by it as confidential,"

Items (i) to (xii) in the definition of "personal information" go on to list categories of information which are included within the definition. This list includes information relating to an individual's financial affairs, medical history, employment history, age, sex, property, tax affairs, etc. .

I have examined the contents of the record and I am satisfied that Part A of Record 219 discloses personal information of the applicant as well as of the applicant's wife.  In the case of Part B, I am satisfied it discloses personal information of the applicant as well as of the applicant's ex-wife. On the face of it, such personal information is exempt from release under Section 28(1) of the FOI Act subject to the limited exceptions to this provision.

Do any of the Exceptions to Section 28(1) apply?

Within Section 28 there are some exceptions to the general rule that personal information will not be disclosed. For present purposes, the exceptions of relevance are those contained at subsections (2) and (5) of Section 28.

" (2) Subsection (1) does not apply if_

(a) .....the information concerned relates to the requester concerned,

(b) any individual to whom the information relates consents, in writing ...to its disclosure to the requester;"

Part A of Record 219

The information in Part A of Record 219 relates to the requester (the applicant) and his wife. As the applicant's wife has consented in writing to the disclosure of all of her personal information to the applicant, it is clear that the exceptions at (a) and (b) above apply. On this basis, it is clear that the exemption at Section 28(1) does not apply. Therefore, unless some other exemption is found to apply, Part A of record 219 will fall to be released.

Part B of Record 219

The information in Part B, while mentioning the applicant, is primarily the personal information of the applicant's ex-wife; as she has not given her consent to its release to the applicant, it is on the face of it exempt from release under Section 28(1) and under Section 28(5B) which deals with joint personal information. Section 28(5B) 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 requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester.”.

In the present context, what this means is that the joint personal information of the applicant and of his ex-wife is exempt from release under Section 28 except that one or other of subsections (5) or (6) of Section 28 is found to apply. Subsection (6) has no application in the present context but subsection (5) must be considered. Subsection (5) of Section 28 provides that the exemption does not apply -

(5) "Where, as respects a request under section 7 the grant of which would, but for this subsection, fall to be refused under subsection (1), in the opinion of the head concerned, on balance

(a) 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 the individual aforesaid,the head may, subject to section 29, grant the request."

No case been made, that the release of personal information to the applicant would be to the benefit of the person in question. Therefore, I find that Section 28 (5)(b) does not apply. However, the public interest provision at Section 28(5)(a) must be considered.

The Public Interest

To apply Section 28(5)(a), it is necessary to identify the public interest served by the release of the particular record and assess whether it outweighs the public interest in protecting the right to privacy of the individual to whom the information relates.

The public interest is served by actions or measures which serve to protect and respect the rights of a person who has been detained involuntarily under mental health legislation. The Mental Health Act 2001, which is the legislation under which the applicant was detained involuntarily, speaks particularly of the need to serve the "best interests" of a person detained involuntarily and requires that "due regard shall be given to the need to respect the right of the person to dignity, bodily integrity, privacy and autonomy." I take it that these requirements continue to have application following such a person's release from involuntarily detention. On this basis, I am satisfied that there is a public interest in the applicant having full access to the hospital records which relate to the period of his detention.

I note that the applicant, in his submissions to this Office in the course of this review, has expressed the view that the information about him provided to the hospital by his ex-wife was incorrect and given maliciously. The applicant has also said that he is preparing a human rights case to be brought before the Courts and that having access to all of his records is important in that context.

The redacted item in Part B consists of just eight words and relates primarily to the applicant's ex-wife. In the context of 295 pages of records being released, and having regard to the content of Part B and what it discloses about the applicant's ex-wife, I am satisfied that the withholding of these eight words does not disadvantage the applicant in any substantial way. I am satisfied, in these particular circumstances, that the public interest that the request should be granted does not outweigh the public interest that the right to privacy of the individual to whom the information relates should be upheld. I find accordingly.

Section 26

The applicant's ex-wife has objected to the release to the applicant of the information provided by her to the hospital. This objection is on the basis that she understood that her telephone conversation with the hospital doctor was confidential. While she has not made an explicit argument to this effect, it may be inferred that the applicant's ex-wife is seeking to argue that Part A should be exempt from release on the basis of Section 26(1)(a) which protects information obtained in confidence.

Section 26 provides:

26.-(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 the public body concerned 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 ) [...]

(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.

It is arguable as to whether the tests set out in Section 26(1)(a) are met in the case of Record 219. It is doubtful whether any doctor discussing a patient with a third party, in the context of an involuntary admission would have given the third party to understand that the information was being given and received in confidence. In any event, even if the tests of Section 26(1)(a) are met in relation to Part A of Record 219, it would still be necessary to take account of the provision at 26(2). Record 219 was "prepared" by a member of staff of the HSE and, therefore,  26(2) applies. This means that the exemption at Section 26(1)(a) will apply only where to disclose the record " 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" , in this instance, to the applicant's ex-wife. There is no reason to believe that disclosure of the content of Part A of Record 219 would result in a breach of a duty of confidence.

I find therefore that  Part A of Record 219 is not exempt by virtue of Section 26(1)(a) of the FOI Act. As I have already found that Section 28(1) does not apply to Part A, and as no other exemption is of potential relevance, I find that Part A of Record 219 is not exempt and falls to be released on foot of the applicant's FOI request.

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 Health Service Executive in relation to Record 219 which is the only record at issue in this decision. I direct that Part A of Record 219 be released to the applicant but that Part B of Record 219 should not be released to the applicant.

Appeal Rights

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.

Fintan Butler

Senior Investogator

28 September 2011