Whether the HSE was justified in refusing access to excerpts of social work records, created subsequent to the applicant's son's hospitalisation in 2011, under section 28 of the FOI Act.

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

Background

On 4 February 2012, the applicant made an FOI request to the HSE for copies of social work records that had been created subsequent to her son's hospitalisation in 2011. The HSE's decision of 21 May 2012 identified 47 records, a number of which were released in full and in part and the remainder withheld. Following the applicant's internal review application of 5 August 2012, the HSE issued an internal review decision on 20 August 2012, upholding its earlier decision. On 3 October 2012, the applicant sought a review by this Office of the HSE's refusal to fully release all 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 her by Ms Anne Lyons, Investigator, dated 20 June 2013, to which I note that the applicant has not replied. I have had regard also 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").

Scope of the Review

The scope of this review is confined to assessing whether or not the HSE is in accordance with the terms of the FOI Act in fully withholding some records, and partially withholding other records, of relevance to the applicant's request. The details at issue are listed under the "Findings" section of this decision.

Findings

It is relevant to note, as a preliminary matter, that section 8(4) of the FOI Act does not allow this review to have regard to any reasons as to why the applicant is seeking the withheld records (although such reasons may be relevant to consideration of the public interest). It is relevant to note also that section 13(1) provides for the release of a record with any exempt material therein being redacted, so long as to do so would not render the ensuing copy of the record to be misleading (section 13(2) refers). Furthermore, section 43(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Finally, it is relevant to be aware that the Courts have found that the release of a record under the FOI Act is akin to its release to the world at large.

The Records at Issue

Of the 47 records at issue, I understand that records 4; 6; 12; 22; 23; 28; 29; 44; and 47 have been fully released. I understand that records 1; 2; 3; 5; 7; 8; 9; 15; 16; 17; 18; 20; 21; 24; 25; 26; 27; 34; 35; 36; 37; 38; 39; 42; 43; 45; and 46 have been partially released, and that records 10; 11; 13; 14; 19; 30; 31; 32; 33; 40; and 41 have been fully withheld.

Any further reference in this decision to a "record" includes those that have been partially withheld.

Sections 28(1) and 28(5B) - Personal Information of A Third Party (or Third Parties)

Section 28(1) of the FOI Act provides, subject to other provisions of section 28, that a public body shall refuse a request for a record where granting it would involve the disclosure of personal information about an identifiable individual. Section 28(5B), also subject to other provisions of section 28, provides for the mandatory refusal of a record that contains personal information of the person making the FOI request and that of another party or parties.

Section 43(3) means that I must be very circumspect in my description of the withheld records. Some are entirely comprised of personal information about a party or parties other than the applicant. I am satisfied, and find, that such information is exempt from release under section 28(1) of the FOI Act.

I am satisfied that the remaining withheld information is comprised of personal information about the applicant that is inextricably linked to personal information about another party or parties (to which I will refer as "joint personal information"). As the information is inextricably linked, it is not possible to release any personal information about the applicant without also disclosing the personal information of the third party or parties. Thus, I find the joint personal information concerned to be exempt from release under section 28(5B) of the FOI Act.

However, some of the joint personal information concerns the applicant and her son, whom I understand to be a minor (i.e. under 18).

Section 28(6) - Records Containing Joint Personal Information of the Applicant & Her Son

Regulations made by the Minister for Finance under section 28(6) of the FOI Act provide that, subject to certain conditions, a request for records relating to personal information about a minor may be granted where the requester is the minor's parent or guardian. These Regulations do not provide a basis for releasing to a parent or guardian records, or parts of records, which contain the personal information of a minor and any other party.

I must draw particular emphasis to the very small amount of joint personal information in the withheld records that concerns the applicant and her son only.

The applicant is aware that the Information Commissioner does not consider the definition of a record or the provisions of section 13 to 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. In the circumstances of this case, the Commissioner's view would not support the cutting or "dissecting" of the records to any extent greater than already done by the HSE. Furthermore, I would also consider the release of this limited number of excerpts, in the absence of the other withheld details, would render the ensuing copies of the records to be misleading. Any such direction on my part would thus breach section 13(2) of the FOI Act, in which case the records remain exempt under section 28(5B) of the FOI Act. Under such circumstances, there is no need for me to consider the application of the section 28(6) Regulations in the circumstances of this case.

For completeness, however, I will make the following comments.

The Supreme Court, in a judgment concerning a father's FOI request for access to his daughter's medical records (see NMcK v the Information Commissioner [2006] IESC 2, which is also available on www.oic.ie) found that, having regard to the Constitution, such release was presumed to be in the child's best interests. It said:

"A parent's rights and duties include the care of a child who is ill. As a consequence a parent is entitled to information about the medical care a child is receiving so that he or she may make appropriate decisions for the child, as his or her guardian. The presumption is that a parent is entitled to access such information. That position is not absolute. The circumstances may be such that the presumption may be rebutted. But the primary position is that the presumption exists."

The Court's comments make it clear that the presumption in favour of release of such medical information "may be rebutted". It said also that "evidence may be produced that it would not serve [Mr McK's daughter's] interests, and, in considering the circumstances, her welfare is paramount."

It is evident from the records that the social work involvement concerned took place in a highly sensitive family context (which was described by a social worker to the applicant as "a very difficult situation", according to released excerpts of record 16). If I were required to, I would consider this to be sufficient evidence to find that it would not serve the best interests of the applicant's son if I were to direct the release to the applicant of the limited excerpts containing their joint personal information. Thus, I would find that the details concerned do not fall to be released under the Regulations issued under section 28(6) of the FOI Act, in which case they would remain exempt from release under section 28(5B) of the Act.

Section 28(2)

There are some circumstances, provided for at section 28(2), in which the exemptions at section 28(1) and section 28(5B) do not apply. Having examined the withheld details, I am satisfied that none of the circumstances identified at section 28(2) arises in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of their information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. No argument to the contrary has been made by the applicant, and I find that section 28(2) does not apply to the records at issue here.
Section 28(5)

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

The effect of section 28(5)(a) is that a record, which has been found to be exempt under section 28(1) or 28(5B), 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". In the judgment referred to earlier, the Supreme Court outlined the approach 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.

Following the approach of the Supreme Court, 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). The language of section 28 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). 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.

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies as well as the public interest in ensuring that persons can exercise their rights under the Freedom of Information Act.

However, I am not satisfied in the circumstances of this case that these public interests would, of themselves, be sufficient to warrant the breach of another party's right to privacy. The applicant, although invited to do so, has not identified any true public interest that might warrant the release of the withheld details. I find that the withheld details should not be released further to section 28(5)(a) of the FOI Act.

Finally, it is necessary to consider whether section 28(5)(b) is of relevance. The effect of section 28(5)(b) is that a record, which has been found to be exempt under section 28(1) or section 28(5B), may still be released if it can be demonstrated that the grant of the request would benefit the third party or parties whose information would be released. The applicant has not made any case that the release to her of the personal information of the third parties would "benefit the individual" to whom it relates. Nor am I otherwise aware of any reason to think that such release would be to the benefit of the third parties concerned.

I find that no right of access arises further to the provisions of 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.

Sean Garvey
Senior Investigator