Whether the HSE was justified in its decision to refuse access to portions of records relevant to the applicant's request on the basis that the information withheld is exempt from release under section 28(1) of the FOI Act.

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

Background

On 12 November 2012, the applicant made a request under the FOI Act for a copy of all documents, recordings of phone calls or electronic data held by the HSE Environmental Health Department about her.

The HSE issued a decision on 17 December 2012 providing two schedules of records relevant to the applicant's request. One schedule relates to records held by the HSE's Mayo Environmental Health Department and the other is a schedule of records held by its Sligo and Galway Environmental Health Department. The full schedule of the records held by the Mayo Environmental Health Department were released. In regard to records held by the Sligo and Galway Environmental Health Department, the HSE identified 46 pages of records as relevant to the request, all of which it released with the exception of excerpts of pages 1,4,5,8 and 13. The HSE decided that partial access only be granted to these five pages on the basis that these records contain information personal to staff of the HSE. The HSE considered the withheld details to be exempt under Section 28(1) of the FOI Act.

On 19 December 2012, the applicant made a request for an internal review of the matter. On 14 January 2013, the internal reviewer affirmed the original decision explaining that all information relating to the applicant was released and the parts exempted were personal to the staff members. Subsequently, on 16 January 2013, this Office received from the applicant a request for a review of the HSE's decision.

I note that Mr Richard Crowley, Investigator, wrote to the applicant on 12 March 2013 outlining his preliminary views on the matter and inviting the applicant to comment on his views. On 19 March 2013, the applicant emailed the Office indicating her disappointment with Mr. Crowley's preliminary view. I consider it appropriate to conclude the matter at this time by way of a formal, binding decision.

In conducting 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 details of the submissions of the HSE, to correspondence between the applicant and the HSE and to correspondence between this Office and the applicant. I have also had regard to the provisions of the FOI Act.

Scope of the Review

This review is concerned solely with the question of whether the HSE was justified in its decision to refuse access to the withheld excerpts of pages 1,4,5,8 and 13 of the schedule of records held by Sligo and Galway Environmental Health Department on the basis that they are exempt from release under section 28(1) of the FOI Act.

Analysis and Findings

Section 28(1)
Section 28(1) of the FOI Act provides:
" Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information".I consider that section 28(1) of the FOI Act applies to the withheld details as they disclose personal information about a party other than the applicant.

In outlining his preliminary view to the applicant, Mr Crowley considered the relevance of the definition of personal information contained in section 2 (1) of the FOI Act. In regard to staff of public bodies performing the functions of their position as a member of staff of the public body, Section 2 of the FOI Act includes a provision that personal information does not include......... "anything written or recorded in any form by the individual in the course of and for the purpose of the performance of" his/her functions. Mr. Crowley noted that in its original decision dated 17 December 2012 the HSE stated that it would include, in its definition of personal information, that personal information about a staff member as to how they personally felt in relation to a situation is that member's personal information. Having reviewed the records in question, I agree with the HSE that the information at issue constitutes the personal reactions of staff and was not recorded for the purpose of their functions. Thus, in my view the exception to personal information at section 2 of the FOI Act in regard to staff performing the functions of their position does not apply in this case.

Section 28(5B)
Section 28(5B) provides that ... a head shall........"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, I agree with Mr. Crowley's preliminary view and consider that insofar as the excerpts of the records withheld by the HSE contain personal information relating to the applicant, that information is inextricably linked with personal information of other parties. Thus, I am satisfied that section 28(5B) applies in this case.

Section 28(2)
Section 28(1) and section 28(5B) do not apply in certain circumstances provided for in section 28(2). These are: where the information concerned relates to the applicant; where the third party consents to the release of the information to the applicant; where the information is of a kind that is available to the general public; where the third party was informed prior to the information being given that it belonged to a class of information that would or might be made available to the general public; or, finally, where disclosure of the information is necessary to avoid a serious and imminent danger to the life or health of an individual. Having considered the circumstances of this case and after examining the details withheld by the HSE, I agree with Mr. Crowley's view that section 28(2) is not relevant in this instance.

Section 28(5)
Section 28(5) provides that a record, which would fall to be refused under section 28(1), may still 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 request would benefit the individual" to whom the information relates. In my view section 28(5)(b) does not apply in this case.

In considering the public interest, the Commissioner must take account of the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner(July 2011), which commented on the approach that the Commissioner should take to the issue of public interest. Firstly, the Supreme Court distinguished between a public interest and a private interest. It noted that the FOI request the subject of the Supreme Court appeal was a request for access "by a private individual for a private purpose", which it said "was not made in the public interest." The Court also commented that any public interest would "require to be a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law."

There is a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. In my view there is also a public interest in persons being able to exercise their rights under the Freedom of Information Act, although I believe that this alone would not be sufficient to outweigh the public interest that the right to privacy be upheld. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - in 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"). It is also worth noting that the right to privacy also has a Constitutional dimension. 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 upholding the right to privacy.

Having considered the content of the information withheld in this case, I agree with Mr Crowley's view that the public interest in granting the applicant's request does not outweigh the public interest in upholding the privacy of the third party or parties concerned in this instance.

In conclusion, I consider that the HSE was justified in deciding that the excerpts of the records it withheld contain personal information of third parties. Further, insofar as any of the withheld details contains the personal information of the applicant this information is inextricably linked with personal information of other parties. Accordingly, I find that the HSE was justified in its reliance on section 28(1) of the FOI Act to refuse access to the records at issue.

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.

Stephen Rafferty
Senior Investigator
23 April 2013