Case 100180

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) Further 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. (3) He varied the decision of the HSE in relation to the withheld parts of records 3,9,10 and 11. The withheld parts of these records are exempt from release under Section 28(5B) rather than the exemption under Section 26 (1)(a) as claimed by the HSE.

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: 28.02.2011

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

Background:

The applicant made an FOI request to the HSE on 16 February, 2010 requesting access to various records under eight (8) headings relating to his inpatient hospital stays on particular dates between 1974 and 2002 as follows:

Item 1: Hospital stay commencing 7 January 1974 at St Annes, Our Lady's Hospital, Cork. All records relating to stay required;

Item 2: Hospital stay commencing 16 December, 1988, Our Lady's Hospital - Committal Form 6 and Dr Casey's handwritten notes;

Item 3: Hospital stay commencing 3rd week January 1989, Our Lady's Hospital - Committal Form 6 required;

Item 4: Hospital stay commencing 3rd week July 1998, Our Lady's Hospital, -(a) Committal Form 6 also (b) all handwritten doctor's notes especially those of Drs Cantillon and Daly;

Item 5: Copies of Professor Daly's psychiatric evaluation as required of him to satisfy Court Order (1998);

Item 6: Hospital stay commencing 3 November, 2002 Our Lady's Hospital - Committal Form 6 required;

Item 7: Records of meeting with Mr Don Buckley there during stay;

Item 8: Records of (a) meeting with Dr Dermott Walsh, Inspector of Mental Hospitals held there during stay and (b) correspondence involving same relating to this matter.

The HSE in its two part decision (North Lee and South Lee)  dated 14 May 2010 refused access to some of the records in question, and granted partial access to others. The HSE relied on Sections 10(1)(a), 26(1), and 28(1) of the FOI Acts. The applicant requested an internal review of those decisions on 31 May, 2010. In its internal review decisions of  18 June (North Lee) and 12 July, 2010 (South Lee) the HSE affirmed its original decision. The applicant applied to this Office on 30 July, 2010 seeking a review of the HSE decision.

Preliminary Matters

Item I of the applicant's request was for records related to a hospital stay commencing on 7 January, 1974. The HSE in its decision relied on Section 10(1)(a) of the FOI Act to refuse access to these records on the basis that they do not exist or could not be found.  In the course of this review the applicant informed this Office that he had made a mistake and that his first period of hospitalisation was in 1975, not 1974. He was advised that as he had not requested records relating to 1975 in his original FOI request, access to such records could be sought by way of a fresh application to the HSE. Accordingly the records requested at Item 1 of the request do not form part of this review.

In a letter of 6 January, 2011, the applicant concentrates on records relating to 1977 (not within the scope of this request) which were released to him by the HSE in November 2010 on foot of a separate FOI request. In the course of this review it emerged that the HSE had advised the applicant that, according to their records, his first period of hospitalisation occurred in 1977. The applicant disputes that he was hospitalised in 1977 and states that the 1977 records are forgeries. As this matter was not raised by the applicant in his original request to the HSE he has been advised that this is not a matter on which the Commissioner can comment.

In conducting this review, I have had regard to the submissions of the HSE as well as those of the applicant, the provisions of the FOI Acts, and the contents of the preliminary views letter, dated 23 November, 2010, sent to the applicant by Ms. Anne O'Reilly, Investigator, of this Office, to which the applicant responded on 6 January, 2011.  I consider that this case should now be brought to a close by means of a formal, binding decision.

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

Scope of the Review

The scope of this review is concerned solely with the question of whether the HSE is justified, in terms of the provision of the FOI Act, in its decision to refuse access/partial access to the withheld records.

Submissions

.

Findings

The HSE refused access to the following records on the basis of Section 10(1)(a) of the FOI Act. 

• Item  4(a) - Committal Form  - July 1998; 
• Item 5 - Evaluation by Professor Daly;
• Item 7 - record of meeting with Dr Don Buckley;
• Item 8 - record of meeting with Dr Dermot Walsh.

Section 10(1)(a) provides as follows:

"(1) 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 Commissioner's role in cases such as this is to review the decision of the public body and to decide whether that decision was justified. This means that the Commissioner must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for the records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for the records were reasonable.  The Commissioner's understanding of her role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A.)

The HSE provided this Office with detailed information on its record keeping practices and the searches it carried out for the records requested by the applicant, these were conveyed to the applicant in Ms. O'Reilly's preliminary views letter. 

As explained to the applicant by Ms Anne O'Reilly in her letter dated  23 November, 2010,  in addition to the searches undertaken,  the HSE contacted Professor Daly (retired) regarding the evaluation form (Item 5 ). Professor Daly felt that he would have taken his report with him on retirement, but that he no longer has it as he had searched for it and has concluded that he shredded the report. In relation to Item 7,  Mr Don Buckley, who also has retired, was contacted. Mr. Buckley stated that this meeting did not take place and confirmed as a result that there was no record of this meeting.  In relation to Item 8, the applicant's meeting with Dr Dermot Walsh, the HSE has advised that Dr Walsh was employed by the Department of Health and Children as an Inspector of Mental Hospitals. He is now retired but any available records he created while an employee would be under the remit of the Department of Health and Children and the applicant was advised to submit a request to that Department for any such records.

In relation to the searches conducted I am satisfied that significant time and resources have been expended by the HSE in searching for additional records and I am satisfied with the accounts of the searches supplied to this Office. Having reviewed the steps taken by the HSE to locate the records sought by the applicant, I  now consider that all reasonable steps have been taken to ascertain the whereabouts of such records. Accordingly, while fully acknowledging the importance to the applicant of the records requested, I am satisfied that it is reasonable to conclude, in the light of the efforts made to locate them, that the additional records sought either cannot be found or do not exist and I believe that the HSE's decision, insofar as it relates to these records, was made in accordance with section 10(1)(a) of the FOI Act.

Section 28 (1)

The HSE granted only partial access to the following records on the basis of Section 28(1) of the FOI Act. 

• Item 2 - Committal Form dated 15/12/1988 - Record No. 285
• Item 3 - Committal Form dated 18/1/1989 - Record No. 112
• Item 6 - Committal Form dated 3/11/2002 - Record No. 287
• Item 8 (b) - correspondence relating to meeting with Dr Dermot Walsh - Record No. 288

As the applicant has previously been advised by Ms O'Reilly, 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 applicant). I have examined a full copy of the records in question. The HSE has deleted portions of the above numbered records. On all of these records the withheld material consists of the name or name and address of  the person who made the applications for the applicant's admittance to hospital. The applicant has acknowledged to Ms O'Reilly that he is aware of the identity and details of this person. However,  I am mindful that, in the case of FOI, records are released without any restriction as to how they may be used and, in effect, FOI release is regarded as release to the world at large. Moreover, 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").

In the case of Section 28(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.  In this case, I am aware of no public interest in favour of release of the records at issue which would outweigh the public interest in protecting the right to privacy of the third party. In my view, the nature of the withheld information is such that its being withheld does not create any disadvantage for the applicant. In these circumstances, I find  that the public interest in granting the request does not outweigh the public interest that the right to privacy of the other party should be upheld. 

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, would be of any benefit to that party and, accordingly, I consider that no right of access to the portions of the records containing that information arises.

Accordingly, I find that the HSE is justified in its decision to refuse access to the requested records on the basis that they are exempt from release under section 28 of the FOI Act. 

Section 26(1)

The HSE granted only partial access to the following records on the basis of Section 26(1) of the FOI Act. 

• Item 4(b) - Doctors handwritten notes related to the July 1998 admission.

The HSE found 14 pages of handwritten notes dating from 16 July 1998 to 29 July 1998. Ten of these pages were released to the applicant in full, access to two pages were refused (Records 9 and 10) and 2 pages were released with redactions (Records 3 and 11).  During the course of this review and following correspondence from this Office, the HSE released parts of Records 9 and 10 and  further parts of Records 3 and 11 to the applicant.

Section 26 - Information given in confidence

The HSE relied on section 26(1)(a) to refuse access to the witheld parts of above records (Records 3,9,10 and 11). Section 26(1)(a) of the FOI Acts exempts records containing information given to the public body in confidence. This does not apply to a record which is prepared by a member of the staff of the public body, in the course of the performance of his or her functions (Section 26(2)), unless disclosure of the information concerned  would constitute a breach of a duty of confidence owed to someone other than a public body.

I have considered whether there is an equitable duty of confidence, that is, a "duty of confidence...provided for...by law", owed to the third party.  In doing so, I have applied the tests set out in the leading case of Coco v. A.N.Clark (Engineers) Limited F.S.R. 415 (which is accepted as reflecting the Irish law on the subject - see, for example, House of Spring Gardens Limited v. Point Blank Limited [1984] I.R.611) in which Megarry, J. stated as follows :

"Three elements are normally required if, apart from a contract, a case of breach of confidence is to succeed.  First, the information itself.....must have the necessary quality of confidence about it.  Secondly, that information must have been imparted in circumstances imposing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

It is my view that the information in the records does not reveal any particularly sensitive information about the third party and therefore does not have the necessary quality of confidence about it. I note that there is nothing in the records to suggest that the information was given on condition that it would not be disclosed to requester.  In the circumstances, I find that section 26(1)(b) does not apply in the case of these records.

However, having examined the remaining redacted parts of  these records, I note that the information they contain is personal information about  the applicant which is closely intertwined with personal information about other members of the applicant's family.

In a situation where a record contains personal information about a requester which is closely intertwined with personal information about another person (or persons), and where it is not feasible to separate the personal information about the requester from that relating to the other person (or persons), it can be described as joint personal information and the provisions of section 28(5B) must be considered.

 Section 28(5B) - 

which was inserted into the FOI Act by the Freedom of Information (Amendment) Act, 2003 - provides that:

" 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."

Having examined the records in question, I find that section 28(5B) applies to them.

Section 28(5)(a) of the FOI Act provides that records, otherwise exempt by virtue of section 28(5B), may be released if, 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".

There is a public interest in the applicant exercising his rights under the FOI Act in order to enhance his understanding of the reasons for treatment given, or courses of action taken, by the HSE. However, there is also a public interest in protecting the right to privacy of those third parties to whom the information also relates. A key consideration here is the fact that the applicant is not disadvantaged by the withholding of certain parts of the records in question. I can see no case at all that the public interest requires a breaching of the privacy rights of the other parties.

The applicant has previously indicated to Ms O'Reilly that he accepted that the redacted records are exempt from release under the provisions of Section 28 of the FOI Act, but requested that the position should be outlined in this decision.

Under the circumstances, I find that the public interest would be better served by protecting the rights to privacy of that person (or persons) to whom the information relates, rather than by releasing this information to the applicant and accordingly I find these records to be exempt from release under Section 28(5B) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act 1997, as amended, I hereby

1. affirm the decision of the HSE in relation to the records exempted from release on the basis of Section 10(1)(a);
2. affirm the decision of the HSE to grant only partial access to records 112, 285, 287 and 288 on the basis of Section 28(1) of the FOI Act;
3. vary the decision of the HSE  in relation to the withheld parts of records 3,9,10 and 11. The withheld parts of these records are exempt from release under Section 28(5B) rather than the exemption under Section 26(1)(a) as claimed by the HSE.

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.

Seán Garvey

Senior Investigator

28 February 2011