Whether the HSE was justified in refusing the applicant's request for access to further records relating to his daughter

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

Background

In May 2008, one of the HSE's Family Centres completed an assessment of the applicant's then 6-year-old daughter who had been referred by the local Social Work Department because of allegations of sexual abuse by the applicant. In a FOI request dated 27 May 2009, the applicant sought access to a "true and complete copy" of the file held by the Family Centre in relation to his daughter. Some delay arose in dealing with the request because of a separate but similar request made by the applicant to the HSE's Social Work Department. On 1 October 2009, the HSE refused the Family Centre file on the basis of sections 28 and 23 of the FOI Act. On 13 October 2009, the applicant sought an internal review of the HSE's decision; in this application he asserted that he is "a parent of the child and am entitled to this information as I have equal right of access to my child's records". In its internal review decision dated 22 June 2010 the HSE granted the applicant's request in part, but refused access to the majority of the records under sections 28, 26, and 23 of the FOI Act. In a letter dated 6 December 2010, the applicant applied to this Office for a review of the HSE's decision.

On 23 May 2013, Ms. Melanie Campbell, Investigator, wrote to the applicant to notify him of her preliminary view that the HSE's decision to refuse access to the records sought was largely justified under the FOI Act. The applicant was given an opportunity to make any further comments that he considered relevant to the review. In his reply of 11 June 2013, the applicant made some comments regarding the circumstances which led to the HSE's involvement with his daughter and he also asserted that he is "entitled to correct records under the European Convention of Human Rights". I take this to mean that the applicant is asserting a right to access the complete records of his daughter's assessment rather than asserting a right to amend or correct those records.

With the authority delegated to me by the Information Commissioner, I have now completed my review in accordance with section 34(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the HSE and by the applicant as well as to the provisions of the FOI Act. I have also examined the Family Centre file provided to this Office for the purposes of the review.

Scope of the Review

On 1 February 2011, the HSE agreed to the release of small number of additional records from the Family Centre file to the applicant. Following more recent contacts with this Office, the HSE agreed to release a small number of further records, including a speech and language therapy report. Following the schedule of records made available to this Office by the HSE, the records remaining at issue are as follows:

Section One - Consultations
Records numbered 1(a), 3

Section Two - Team Discussions
Records numbered 3, 5

Section Three - Correspondence with Social Work
Record number 1 (in part)

Section Four - Appointments/Correspondence with Parents
Records number 1, 3, 4, 5-7(b), 11

Section Seven - Medical Examination
Record number 1(a-g)

Section Eight - Interviews
Records number 1(a)-4(u)

Section Nine - History
Records numbered 2(a-d) (in part), 4(a-b), 5(a-b), 6(a-u)

Section Ten - Referral
Records 1(a-f)

Inside Back Pocket of File
Record number 1(a-w) (in part), 2(a-b), 3(a-g).

This review is concerned solely with the question of whether the HSE's decision to refuse access, in full or in part, to the records identified above was justified under the FOI Act.

Analysis and Findings

Preliminary Matters
Before dealing with the relevant exemptions, I wish to make some general points. The first is that, while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. This constraint means that, in the present case, the extent of the reasons that I can give is limited. However, I am mindful of the burden of proof under section 34(12)(b) of the Act which requires the HSE to show to my satisfaction that its decision to refuse to grant the request is justified.

Secondly, it is relevant to note that section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 13 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Thirdly, the records at issue here fall, very broadly, into two categories: (1) records disclosing substantive material relating to the conduct of the assessment including interviews with the applicant's daughter and/or her mother, some medical assessment reports on his daughter, and the final, completed Family Centre assessment report and (2) records of a more procedural or administrative nature including the making of arrangements for meetings and interviews and consent forms relating to the various aspects of the overall assessment.

Finally, the HSE has relied on a number of exemptions to justify its refusal of access to the records at issue. Although it no longer seems to rely on section 23 of the FOI Act, which relates to law enforcement and public safety, the HSE has referred instead to section 21(1)(a) in relation to certain records. Section 21(1)(a) relates to tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body. All of the records at issue disclose the personal information of the applicant's daughter and/or her mother and the HSE has relied on section 28, which protects personal information, to justify its refusal of the records. In the circumstances, I consider that section 28 is the most relevant exemption to consider in this case.

Personal Information
Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details twelve specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including "(i) information relating to the educational, medical, psychiatric or psychological history of the individual," and "(vi) information relating to the religion, age, sexual orientation or marital status of the individual".

It is quite clear that the records at issue in this case disclose the personal information of parties other than the applicant and that, given the background to the FOI request, much of this information is of a deeply private and sensitive nature.

Section 28(1) provides that a public body shall refuse to grant access to a record where access would involve the disclosure of personal information, including personal information relating to a deceased individual. This general protection for personal information may be set aside on a number of grounds provided for elsewhere in section 28. These grounds will be considered a little later below.

A feature of these records is that, in very many instances, they disclose the joint personal information of the applicant's daughter and of her mother; in some instances they disclose the joint personal information of the daughter and her father (the applicant); and in some instances they disclose the joint personal information of all three (daughter, mother and father). In the normal course, a FOI requester will be entitled to access his or her own personal information; but where the requester's personal information is joined with the personal information of one or more third parties, as is the case here, then section 28(5B) of the FOI Act applies.

Section 28(5B) of the FOI Act provides that where a record contains joint personal information, that is, personal information about two or more individuals, third party information must, subject to the other provisions of section 28, remain protected. It is necessary, therefore, to consider the other provisions of section 28 under which personal information of parties other than the requester may be released.

Section 28(2)
Section 28(2) provides a number of grounds on which the release of personal information is allowed. The two grounds of potential relevance here are at subsection (2)(b) and (e). The former deals with a situation in which the individual to whom the information relates consents to the release; and the latter deals with a situation in which "disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual". In this case, the child's mother has not consented to her personal information being disclosed. The applicant's child is now 11 years of age and it would not be appropriate to seek her consent in relation to the release of her personal information. To the extent that it may be relevant, the child's mother, who is her legal guardian, has declined to give her consent to the release of her daughter's personal information. The child's father (the applicant) does not have guardianship rights in relation to his daughter. I find, therefore, that section 28(2)(b) does not apply in this case.

As regards section 28(2)(e), I have no reason to believe that the release of any of the personal information in question here is "necessary in order to avoid a serious and imminent danger to the life or health of an individual". I find, therefore, that section 28(2)(e) does not apply in this case.

Section 28(5)
Section 28(5) provides that personal information of a party other than the requester may be released where, 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 information would be to the benefit of the person to whom the information relates.

In order to apply the public interest test provided for at section 28(5)(a), it is necessary to identify the public interest which would be served by the release of the records and make a judgement as to whether, on balance, that public interest outweighs the public interest in protecting the privacy rights of the individuals concerned. The FOI Act itself recognises a very strong public interest in protecting privacy rights, as reflected 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"). Under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large. Privacy rights will therefore 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 the right to privacy.

On the other hand, the FOI Act also recognises a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business. Thus, in this case, I find that there is a general public interest in openness and transparency as to the manner in which the HSE carried out its functions under the Child Care Act. There is also a public interest in promoting procedural fairness where a public body engages with a member of the public in a context which may carry adverse consequences for that individual. However, the circumstances of this particular case suggest that the requirements of transparency and of fair procedure have been met in the manner in which the HSE engaged with the applicant in its assessment of his daughter. On this view, release of the records to the applicant under the FOI Act will not serve further the requirements of transparency or fair procedure to any significant extent.

It is clear from his submissions both to the HSE and to this Office that the applicant is pursuing his FOI request and review application in the context of his rejection of the allegations made against him. It is clear also that he believes he has a right to access the records in question because of the upset and distress he has endured arising from the allegations and the subsequent involvement of the Health Service Executive. It appears that the applicant is anxious to have as much information as possible in order to, as he would see it, clear his name. In the normal course, a requester's motivation in seeking records under the FOI Act must not be taken into account in deciding on the request. However, this is not necessarily the case where the public interest becomes a consideration.

There is a distinction to be drawn between what constitutes a public interest as against what is a purely private interest. In some cases, these different interests overlap. In the present context where the applicant has not himself directly addressed the issue of the public interest, it is reasonable to infer that, while he wants to acquire the records for his own private purposes, that private interest overlaps with the public interest in transparency and, more particularly, in fair procedure. While I do not regard it as appropriate to explain this in any detail here, I am satisfied that the HSE's engagement with the applicant was such that it met the requirements of transparency and of fair procedure. In these circumstances, therefore, the weight to be attached to the public interests in transparency and fair procedure is less than might otherwise be the case.

Having considered the matter very carefully, I find in this case that the public interest that the request should be granted does not outweigh the public interest that the right to privacy of the individuals to whom the information relates should be upheld. I find therefore that section 28(5)(a) does not apply in this case.

The question posed in section 28(5)(b) is whether the release of the records would be to the benefit of the persons to whom the information relates, that is, to the benefit of the applicant's daughter and/or her mother. Again, this is not an issue which the applicant has himself addressed. The position is that the child's guardian (her mother) has withheld her consent to the release of any of the records in question, whether relating to herself or to her daughter. I am not aware of any argument that release of these records to the applicant would benefit either his daughter or her mother. I find therefore that section 28(5)(b) does not apply in this case.

Section 28(6) and the 2009 Regulations
Section 28(6)(a) provides for the making of regulations under which the parent or guardian of a person belonging to a specified class of persons may have a right of access to that person's personal information. The regulations of relevance here are contained in S.I. No. 387 of 2009 and deal in particular with the personal information of minors. The regulations provide for a right of access by parents or guardians to records containing personal information relating to minors in certain circumstances. The regulations provide that a request for records relating to personal information about a minor shall be granted where the requester is the minor's parent or guardian and where, having regard to all the circumstances and to any relevant guidelines published by the Minister, access to the records by the parent/guardian would be in the minor's best interests. I note that I have had regard to the relevant Guidance Notes published by the Minister. In the circumstances of this case, however, I do not consider that it is appropriate to consult with the child concerned.

The issue to be decided, therefore, is whether the best interests of the applicant's child will be served by the release to the applicant of those records disclosing his child's personal information.

The Supreme Court held in the case of McK v. The Information Commissioner[2006] IESC 2, available on our website at www.oic.gov.ie, that a parent is entitled to a rebuttable presumption that access to his or her child's medical information is in the best interests of the child. The Court further explained: "The presumption is that the release of such medical information would best serve the interests of the minor. However, evidence may be produced that it would not serve her interests, and, in considering the circumstances, her welfare is paramount." However, this presumption applies only in circumstances where the family in question, of which the parent is a member, is a family of the kind recognised by the Constitution. The family recognised by the Constitution, and which accordingly has rights under the Constitution, is the family based on marriage. In the present case, the applicant is not married to his child's mother and he is not a parent in a family recognised by the Constitution. Furthermore, the applicant has never lived together with his child and her mother and they have never constituted a household together. Neither, as mentioned above, is the applicant the legal guardian of his child. For these reasons, in assessing whether or not the child's best interests would be served by release to her father of her personal information, the Constitutional rights of parents are not a consideration.

The applicant has not made any specific argument that release to him of his daughter's records would serve her best interests. Rather, the arguments from the applicant's side concern his own position and his perception of what his rights are. The child's mother, who is her legal guardian, has refused to consent to the release of the records and this, presumably, may be taken to mean that she does not believe such release would serve the best interests of the child. From my examination of the records in question, and bearing in mind that release of records under the FOI Act is done without any restriction on future use, I cannot see any strong argument to support the view that release would be in the child's best interests.

The applicant has asserted that he is entitled to "correct records under the European Convention of [sic] Human Rights". Again, this argument appears to be directed towards his own rights rather than issues relating to the best interests of the child. In any event, it is not clear what the applicant's rights as a father would be under the European Convention on Human Rights and the applicant has not developed his argument. It seems to me that Article 8 of the Convention - providing for the right to respect for private and family life - is likely to be the relevant provision in the present context. However, it is not at all clear that Article 8 provides for a clear resolution of the tension between the right to privacy of individual family members and the right of a parent to access the sensitive personal information of a child.

Having considered the matter carefully, I find in the circumstances of this case that the best interests of the applicant's child will not be served by the release to the applicant of those records disclosing his child's personal information. I find therefore that section 28(6)(a) does not apply in this case.

Overall Finding
The records at issue in this review constitute the personal information of the applicant's child and of her mother. On the face of it, but subject to the other provision of the section, they are exempt from release under the FOI Act by virtue of section 28(1). The other relevant provisions of section 28 are those at subsections (2), (5) and (6) and I have found that none of these provisions applies.

In so far as the records also disclose some personal information of the applicant, that information is joint information with the applicant's child and/or her mother. Section 28(5B) applies in this situation and, in effect, it requires that the joint personal information is exempt from release except one of the other overriding provisions of section 28 applies. I have found that none of the overriding provisions of section 28 applies.

The situation then is that all of the records at issue are exempt by virtue of section 28(1) and that this exemption is not displaced by any of the overriding provisions within section 28. Having found that section 28 applies to all of the records, it is not necessary for me to consider the other exemptions relied upon by the Health Service Executive.

Decision

Having carried out a review under section 34(2) of the FOI Act, 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 an appeal must be initiated not later than eight weeks after notice of the decision was given to the person bringing the appeal.

Fintan Butler
Senior Investigator
8 August 2013