Whether the HSE was justified in its decision to refuse access to a social work file relating to the applicants' son under section 28 of the FOI Act.

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

Background

In October 2012, the applicants made a request to the HSE through their solicitor for a copy of the file held by North Cork Social Work Department relating to their son. In a letter dated 7 December 2012, the HSE refused the request on the basis of section 28 of the FOI Act, stating that the applicants' son had been consulted and had clearly stated that he did not want the records at issue to be released. Following internal review, the HSE upheld the original decision to refuse access. On 2 April 2013, the applicants sought a review by this Office of the HSE's refusal to release the social work file.
On 15 July 2013, Mr Derek Charles, Investigator, wrote to the applicants' solicitors to inform them of his preliminary view that the HSE was justified in deciding to refuse access to their son's file. In response, the applicants' solicitors made a further submission outlining why their clients required access to the file. Accordingly, I have decided to conclude this review by issuing a binding decision on the matter. In carrying out my review, I have had regard to the contents of the file sought (which was provided to this Office for the purposes of the Commissioner's review); to correspondence between the HSE and the applicants 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 the applicant's solicitor by Mr Charles and to the reply received from the applicants' solicitor. 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"). I have also had regard to the fact that the applicants' son has recently turned eighteen and as such is no longer a minor.

Scope of the Review

The scope of this review is confined to assessing whether or not the HSE was justified in deciding, pursuant to section 28 of the FOI Act, to refuse the applicants' request for access to the social work file relating to their son.

Analysis and Findings

Preliminary Matters
Before dealing with the relevant exemptions, there are some preliminary points I wish to make. The first point I wish to make is that decisions of the Information Commissioner are de novo. That is, only the circumstances and the law as they pertain at the time of the Commissioner's decision may be taken into account. This view is supported by the 2001 High Court Judgment in the case of The Minister for Education and Science v the Information Commissioner (Cases Numbered 98104, 98130 and 99024 - The Sunday Times, The Sunday Tribune and the Kerryman Newspapers and the Department of Education and Science refer). In that case Justice O'Caoimh, stating that the Commissioner's decisions are de novo, judged that the then Commissioner erred in law in not taking the legal position at the time of his decision (rather than the situation which pertained at the making of the original decision) into account. Justice O'Caoimh stated: "... it is clear that the decision that was to be made by [the] Information Commissioner in light of the appeals taken to him was to [be] made in light of the facts and circumstances applying at the date of the review by him and not those facts and circumstances pertaining on the date of the original decision."

Accordingly, in making my decision in this case, I must have regard to the fact that the applicants' son has recently turned eighteen years of age and is no longer a minor. As a result, I find that the Regulations introduced by the Minister for Finance in 2009, (the FOI Act 1997 (Section 28(6)) Regulations 2009), no longer apply in this case. Those regulations provide for a right of access by parents or guardians to records containing personal information relating to minors 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. However, as the person to whom the information relates (the applicants' son) is no longer a minor, I cannot now consider whether a right of access exists pursuant to the 2009 Regulations.

I am conscious of the fact that the applicants' son was, indeed, a minor when the application for review was submitted to this Office and that it would have been necessary to consider whether a right of access existed in accordance with the 2009 Regulations had the review been completed before he turned eighteen. It is regrettable that the review was not expedited in sufficient time to allow for such a consideration. I note, however, that when Mr Charles of this Office issued his preliminary views in his letter of 15 July 2013, the applicants' son had not yet reached eighteen years of age. In that letter, Mr Charles outlined the basis for his preliminary view that the records sought did not fall to be released under the 2009 Regulations. Had it been necessary for me to consider the matter, I would have agreed with the reasoning outlined by Mr Charles. Nevertheless, the fact remains that the person to whom the information relates is no longer a minor and the question of access rights under the 2009 Regulations no longer arises.

The second point 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.

The third point has to do with the extent to which it is feasible to provide access to parts of records while refusing access to the remaining parts. 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.

Section 28
The file sought in this case is described as a social work file relating to the applicants' son. The records contained in the file fall, very broadly, into two categories: (1) records disclosing substantive material relating to interviews with the applicants' son and also the social work case notes and (2) records of a more procedural or administrative nature including the making of arrangements for meetings and interviews. The majority of the withheld records fall into the former category.

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 information relating to the educational, medical, psychiatric or psychological history of the individual. It is quite clear to me that the records at issue in this case disclose the personal information of the applicants' son and that much of this information is of a private and sensitive nature.

Section 28(1) to the FOI Act provides that a public body shall refuse to grant access to a record where access would involve the disclosure of personal information relating to an individual other than the requester. Furthermore, section 28(5B) provides that a public body shall refuse to grant access to a record where access would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to another individual. A feature of the records at issue is that they disclose the joint personal information of one or both of the applicants and their son while in some instances they disclose the joint personal information of the applicants' son and other parties. 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. Having examined the records at issue, I find that they contain information of a type protected by sections 28(1) and/or section 28(5B).

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 applicants' son has not consented to his personal information being disclosed. He is now eighteen years of age and according to his court appointed solicitor, "he objects in the strongest possible terms to any information relating to him being furnished to his mother, stepfather or indeed any third party". 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 sections 28(2)(b) and 28(2)(e) do not apply in this case.

Section 28(5)
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. 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 when balancing the public interest in granting access to personal information, with the public interest in upholding of the right to privacy of the individual(s) to whom that information relates.

Firstly, the Supreme Court distinguished between a public interest and a private interest for the purpose of section 28(5)(a). 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." Essentially, this indicates a view of the Supreme Court that the public interest test at section 28(5)(a) of the FOI Act would not weigh in favour of release where the reason for seeking access to a record is exclusively private. The Court also commented that any public interest cited in favour of granting access to an otherwise exempt record under the FOI Act 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."

The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business. It also recognises the public interest in persons being able to exercise their rights under the Freedom of Information Act, although this alone would not be sufficient, in my view, to warrant the breach of a party's right to privacy. 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 has a Constitutional dimension as one of the unenumerated personal rights under the Constitution. 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 privacy.

In their submission of 6 August 2013, the applicants argued that a relevant care order was due to expire in September 2013, when their son would revert to their care and that they require the information so that they can provide appropriate care. 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 (section 8(4) refers). Furthermore, while it is clear that private and public interests may, on occasion, overlap, it seems to me that the interest identified in this case is primarily a private interest. The applicants also argued that certain allegations were made against them, to which they have not been allowed to respond. I accept that there is 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, it seems to me that in this case, the applicants were made aware of both the nature of the allegations made and of the outcome of the HSE's investigation. It is not clear to me how the release of the records at issue could be regarded as further serving the public interest in ensuring or promoting fair procedures. I am not satisfied that the invasion of the privacy rights of the applicants' son, which would be the consequence of releasing the records at issue here, is warranted. 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.

Section 28(5)(b)provides that personal information of a party other than the requester may be released where, on balance, the grant of the request would be to the benefit of the person to whom the information relates. No evidence has been presented to this Office to suggest that the release of the personal information relating to the applicants' son would be to his benefit. In the case of a child, one would accept as a general proposition that it is to the benefit of a child that his/her parents should be given access to all relevant information which bears on the child's health, welfare and general well-being. However in this case the applicants' son is eighteen years of age and an adult in his own right. Because of the nature of the information contained in the withheld records, because of the context in which the records were created, and because of the son's express wish that the requested records not be made available to the applicants, my view is that, on balance, release of the son's personal information under the FOI Act would not be to his benefit. I find, therefore, that section 28(5)(b) does not apply in this case.

Overall Finding
The records at issue in this review contain either personal information relating to the applicants' son, joint personal information relating to the applicants and their son, or joint personal information relating to the applicants' son and other third parties. 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 sections 28(1) and 28(5B). 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. Accordingly, I find that the records are exempt from release pursuant to the provisions of sections 28(1) and 28(5B) 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 to release the withheld social work 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