Whether the HSE was justified in refusing access to further excerpts of records relating to a bullying complaint made about the applicant, under section 28 of the FOI Act.

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

Background

On 23 July 2010, the applicant made an FOI request for copies of any correspondence between the HSE's HR Directorate and a person who accused him of bullying; copies of related internal correspondence between the HSE's Corporate and Regional HR Directorates; and copies of records of the preliminary screening of the bullying complaint. The HSE identified 51 pages of records as relevant to the request, all of which it released with the exception of page 50 in its entirety, and excerpts of pages 3 and 9. It considered the withheld details to refer to third parties and thus to be exempt under section 28(1) of the FOI Act (the HSE's decision of 20 August 2010; the internal review application of 7 September 2010; and the HSE's internal review decision of 12 October 2010 refer). On 23 November 2010, the applicant sought a review by this Office of the HSE's refusal to release all the relevant records.

In carrying out my review, I have had regard to copies of the records of relevance to the request (which were provided to this Office for the purposes of the Commissioner's review); to correspondence between the HSE and the applicant as set out above; to details of various contacts between this Office and the HSE; and to details of various contacts between this Office and the applicant, particularly the letter sent to him by Ms Anne Lyons, Investigator, dated 21 January 2013 (to which I will refer as "the preliminary views letter" in the remainder of this decision, as necessary). I have also had regard to the provisions of the FOI Act and, in considering the public interest at section 28(5)(a), the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner(to which I will refer as "the judgment").

As the timeframe in which Ms Lyons invited a response to her preliminary views letter has now elapsed without reply from the applicant, I have decided to conclude the review by way of a formal binding decision.

Scope of the Review

Ms Lyons' preliminary views letter noted that the applicant appeared to accept that record 50 is not covered by the FOI request because it was created after the date thereof, and explained that she did not intend to comment further on record 50 accordingly.

She explained that the scope of this review is therefore confined to assessing whether or not the HSE is in accordance with the terms of the FOI Act in refusing to release the remainder of pages 3 and 9.

Findings

One entire paragraph, and two excerpts of other paragraphs, have been withheld from record 3, whilst one excerpt of a paragraph has been withheld from record 9, to which I will refer in the remainder of this decision as "the withheld details".

Ms Lyons' preliminary views letter drew the applicant's attention to section 43(3) of the FOI Act, which limits the description of the withheld details that can be given by this Office, and to the fact that release of a record under the FOI Act is akin to its release to the world at large. She also told him that section 8(4) does not allow this review to have regard to any reasons as to why he is seeking the withheld details (although she noted that such reasons may be relevant to consideration of the public interest, in so far as they may be construed to be valid public interest arguments). Finally, she told the applicant that any procedural irregularities that may have arisen from the processing of his FOI request are irrelevant to this review.

Sections 28(1) and 28(5B)
The withheld details had been refused by the HSE under section 28(1) of the FOI Act, which provides that, subject to the other provisions of section 28, a public body shall refuse a request for a record where granting it would involve the disclosure of personal information about an identifiable individual.

Ms Lyons' preliminary views noted that the applicant had questioned whether the definition of personal information should encompass the withheld details in the first instance, on the basis of his belief that the withheld details "may refer to another employee of the HSE" about whom a complaint was made. She reiterated an explanation previously given to the applicant that any references to public servants, which allege that the public servant behaved badly or illegally, are accepted by this Office to constitute their personal information.

Ms Lyons told the applicant that she did not consider herself to be in breach of section 43(3) by describing the withheld details (bar the third withheld excerpt of record 3) as referring to a party or parties other than the applicant, which she considered to be exempt from release under section 28(1) of the FOI Act. She said she considered the third withheld excerpt of record 3 to be a reference to the applicant that is inextricably linked to a reference to another party or parties (i.e. joint personal information). Ms Lyons explained that she did not consider it possible to release the reference to the applicant without also disclosing the personal information of the other third party or parties concerned and thus, that she considered the excerpt concerned to be exempt under section 28(5B) of the FOI Act (which, also subject to the other provisions of section 28, provides for the mandatory refusal of a record that contains the joint personal information of the person making the FOI request and that of another party or parties).

I agree with Ms Lyons' views and find accordingly.

Section 28(2)
Section 28(2) provides that sections 28(1) and 28(5B) do not apply in certain circumstances. Having examined the withheld details, I agree with Ms Lyons' view that section 28(2) is not relevant because the third party information contained in the records does not relate to the applicant (this exception cannot be considered in respect of records found to be exempt under section 28(5B)); the third party or parties have not consented to the release of their information; the information is not of a kind that is available to the general public; the information at issue does not belong to a class of information that would or might be made available to the general public; nor is disclosure of the information necessary to avoid a serious and imminent danger to the life or health of an individual. No arguments to the contrary have been made by the applicant, and I find in accordance with Ms Lyons' views.

Section 28(5)
Section 28(5) provides that a record, which is exempt under sections 28(1) and 28(5B), may be released in certain limited circumstances.

Ms Lyons' preliminary views explained that section 28(5)(a) provides that a record, which has been found to be exempt under section 28(1), may be released if it can be demonstrated that "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". She outlined the approach, as indicated by the Supreme Court in the judgment referred to earlier, that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates.

Firstly, a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") must be distinguished from a private interest for the purpose of section 28(5)(a). Secondly, Ms Lyons drew attention to the language of section 28 and the Long Title to the FOI Act which, she said, recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the unenumerated personal rights under the Constitution). She told the applicant that, accordingly, when considering 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.

Ms Lyons outlined that the FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business and that she considered the public interest, in ensuring the HSE's openness and accountability as regards the complaint made about the applicant, to have been sufficiently served by the material released to him to date.

She noted that the applicant was seeking the withheld details so that he could determine whether or not the HSE chose to investigate only the allegations made against him i.e. whether or not it treated him fairly. She suggested that it could be argued that access is being sought to the withheld details for a "private purpose", rather than being "made in the public interest", and that the public interest test should be determined accordingly. She also noted that this Office cannot take a view on the adequacy of any actions taken by the HSE, in which regard it did not seem to her to be appropriate for the Commissioner to direct the release of personal information of third parties (and thus breach their Constitutional rights to privacy) so that the appropriateness of the HSE's dealings with the applicant could be determined. She said, thus, she did not consider that any valid public interest that would warrant the release of the withheld details had been identified.

Ms Lyons went on to say that, even if the applicant's reasons for seeking access to the withheld details could be said to amount to a valid public interest argument, she did not consider the extent to which that public interest would be so served would be sufficient to require the breach of the rights to privacy of the third party or parties whose information is at issue. Ms Lyons also noted that, while the FOI Act recognises the public interest in persons being able to exercise their rights under the Freedom of Information Act, she did not consider that this public interest alone would be sufficient to warrant the breach of a third party's right to privacy. Thus, she was of the view that the HSE was justified in refusing access to the withheld details.

Ms Lyons invited the applicant to make submissions to the Commissioner if he did not accept her views, and told him that the burden of demonstrating that there are true public interest(s), which outweigh the right to privacy of the third party or parties whose personal information is at issue, fell upon him. However, the applicant did not respond to her preliminary views letter. Given the inherently private nature of the withheld details, I agree with Ms Lyons' view that the public interest in granting the applicant's request does not outweigh the public interest in upholding the privacy interests of the third party or parties concerned. I find accordingly.

Section 28(5)(b) provides that a record, which has been found to be exempt under section 28(1), may still be released if it can be demonstrated that the grant of the request would benefit the third party or parties whose information may be released. I agree with Ms Lyons' view that release of the withheld details would not "benefit the individual" to whom it relates (i.e. the third party or parties) and thus I find that the withheld details should not be released further to section 28(5)(b) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the HSE's refusal of the withheld details.

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.

Stephen Rafferty
Senior Investigator
20 February 2013