Whether the HSE was justified in refusing access to records relating to an investigation of one of its employees under section 28(1) of the FOI Act on the grounds that release would involve the disclosure of personal information about an identifiable individual.

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

Background

On 16 April 2012, the applicant, a solicitor acting on behalf of his client's, made a request to the HSE for "copies of the internal report of the HSE concerning various allegations regarding a member of staff of Community Hospital, also all statements, records, notes gathered for this investigation, all documentation containing information relating to the identity of the member of staff, all personnel files and records of the member of staff and the medical records of his late client". On 10 July 2012, the HSE decided to grant access to all medical records in full with the exception of two records where the names of other patients were withheld. It decided to refuse access to the majority of the records relating to the investigation referenced. In a letter dated 19 July 2012, the applicant sought an internal review of the HSE's decision to refuse access to the withheld information that identifies the employee who was found to have been abusive to his client. Following an internal review, the HSE decided to vary its original decision on 27 July 2012, releasing records relating to the applicant's late client and also the recommendations of the Investigating Panel. On 10 September 2012, the applicant sought a review of the HSE's decision.

In carrying out my review, I have had regard to copies of the records relevant 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 Mr Derek Charles, Investigator, dated 22 February 2013 (which I will refer to 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 time frame in which Mr Charles invited a response to his 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

The HSE has withheld 17 records in full and 12 records in part, to which I will refer in the remainder of this decision as the "withheld records". The scope of this review is confined to assessing whether the HSE was justified in refusing access to these records under section 28 of the FOI Act on the ground that release would involve the disclosure of personal information about an identifiable individual.

Findings

Mr Charles' preliminary views letter drew the applicant's attention to section 43(3) of the FOI Act, which limits the description of the withheld records 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. He also told the applicant 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 he 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, Mr Charles told the applicant that it is outside the remit of the Commissioner to adjudicate on how a public body performs its functions generally.

Section 28(1)
The withheld records have been refused by the HSE on the basis of the exemption contained in 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. I believe I am not in breach of section 43(3) of the FOI Act by describing the withheld records as records relating to the HSE's investigation of alleged inappropriate behaviour by a staff member. This Office takes the general view that references to public servants which allege inappropriate or illegal behaviour constitute their personal information for the purposes of the FOI Act. Having examined the contents of the withheld records, I am satisfied that their disclosure would involve the disclosure of personal information relating to a party or parties other than the applicant's late client. I find, therefore, that section 28(1) applies.

Section 28(2)
Section 28(2) provides that sections 28(1) does not apply in certain circumstances. Having examined the withheld details, I am satisfied that section 28(2) is not relevant because the third party information contained in the records does not relate to the applicant, 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 that section 28(2) does not apply.

Section 28(5)
Section 28(5) provides that a record, which is exempt under section 28(1), may be released in certain limited circumstances. As Mr Charles' preliminary views explained, 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". He 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, Mr Charles drew the applicant's attention to the language of section 28 and the Long Title to the FOI Act which 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). He 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.

Mr Charles 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 he considered the public interest, in ensuring the HSE's openness and accountability as regards the investigative process conducted in this case to have been sufficiently served by the material released to the applicant to date. He noted that the HSE had contacted the late client's family and made them aware of the wrongdoing on behalf of one of its employees. The HSE had conducted an internal investigation of these allegations and prepared an internal report, setting out the findings of the internal investigation which had been provided to the applicant on behalf of his client. The General Manager of Waterford Community Services had apologised for what had happened to the late client while in its care. Mr Charles is of the opinion that the applicant had full knowledge on how the HSE, a public body had performed its functions. He was also of the opinion that the HSE has acknowledged its obligations with regards to patients, however it also has an obligation to uphold the privacy rights of its staff.

While there is no doubt a public interest in optimising openness, accountability and transparency in the manner in which the HSE investigates complaints, I do not believe that the public interest in disclosing the identity of the HSE employee would serve to significantly increase openness, transparency and accountability to the extent that it would outweigh the significant privacy rights of the employee. Mr Charles was of the opinion that access is being sought to the withheld records for a "private purpose" rather than being "made in the public interest" and that the public interest test should be determined accordingly. He did not consider that any valid public interest had been identified that would warrant the release of the withheld records.

Mr Charles 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, he 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. Mr Charles 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, he did not consider that this public interest alone would be sufficient to warrant the breach of a third party's right to privacy. Thus, he was of the view that the HSE was justified in refusing access to the withheld details.

Mr Charles invited the applicant to make submissions to the Commissioner if he did not accept his views. However, the applicant did not respond to his preliminary views letter. Given the inherently private nature of the withheld details, I agree with Mr Charles' 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 for the reasons he outlined. 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 Mr Charles' view that release of the withheld records would not "benefit the individual" to whom it relates (i.e. the third party or parties) and thus I find that the withheld records 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 records.

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
27 March 2013