Whether the HSE was justified in its decision to refuse access to part of the applicant's GP record which identifies a third party who contacted the GP concerning the applicant.

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

Background

On 10 May 2013, the applicant, a medical card holder, applied to the HSE for access to her medical and social work records, including medical records relating to her pregnancy and postpartum period held by her GP. (General Practitioners provide services on behalf of the HSE to people with medical cards.)

The HSE wrote to the applicant on 4 June 2013, providing a copy of the GP records requested, with the exception of one part of the record which the HSE withheld on the basis that the withheld information contains the personal information of a third party. In her letter dated 8 June 2013, the applicant sought an internal review of the HSE's decision. In its letter dated 14 June 2013, the HSE upheld the original decision. Subsequently, on 18 June 2013, this Office received a request from the applicant for a review of the HSE's decision. The applicant's request to this Office relates solely to the part of her GP record withheld by the HSE.

I note that Mr Richard Crowley, Investigator, wrote to the applicant on 2 September 2013 outlining his preliminary views on the matter and inviting the applicant to comment on his views. On 5 September 2013, the applicant replied contending that, as the welfare of a child is concerned, the public interest in release of the information in this case outweighs the right to privacy of the third party. Mr Crowley wrote to the applicant again on 15 October 2013 in regard to his further views in this matter. 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 correspondence between the applicant and the HSE, to correspondence between this Office and the applicant and to the contents of the record in question (a copy of which was provided to this Office by the HSE for the purposes of this review). 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 portion of the applicant's GP record which identifies a third party who contacted the GP concerning the applicant.

Preliminary Matters

At the outset I wish to clarify that Section 8(4) of the FOI Act expressly provides that decision makers shall, subject to the provisions of the FOI Act, disregard any reasons that the applicant has, or is believed to have, for making a request. Accordingly, the jurisdiction of this Office is confined to examining the records in conjunction with the relevant FOI legislation to decide whether the public body's decision was justified.

Analysis and Findings

The record concerned in this review is a note on the applicant's GP record which documents that a call was received from a named individual who expressed concern about the applicant's behaviour. The part of the record withheld by the HSE was the caller's name.

While the HSE relied upon the provisions of section 28(1)(a) of the FOI Act in deciding to refuse access to the records at issue, I consider section 23(1)(b) to be of most relevance in this case. Section 23(1)(b) provides that a public body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence.

The section is an exemption provision aimed at ensuring that members of the public are not discouraged from co-operating with bodies or agencies in the enforcement or administration of the civil law, by providing information which might assist such bodies or agencies to perform their functions more effectively. For section 23(1)(b) to apply, three specific requirements must be met. The first is that release of the withheld information could reveal, whether directly or indirectly, the identity of the supplier of the information. The second is that the information must have been given to the public body in confidence, while the third is that the information must have been supplied to the public body in relation to the enforcement or administration of the civil law.

First requirement
I am satisfied that the disclosure of the information withheld from the applicant would reveal the identity of the person who gave the information to the GP and thereby find that the first requirement under section 23(1)(b) is met.

Second Requirement
It is not clear if the person who contacted the GP specifically requested that information be treated as confidential. Nevertheless, I accept, on balance, that the individual concerned would have expected that his/her identity would not be disclosed to the applicant. In my view, it is important to the HSE that channels of information from the public remain open and it is possible that disclosure of information revealing the identity of the person who have given information could, in certain cases, compromise the supply of such information into the future. In my opinion, if a practice were to develop of revealing the identity of those who provide information in confidence to the HSE in relation to its statutory duties, that practice could be seen as a barrier to people bringing their genuine concerns to the attention of the HSE. While I note the applicant's contention that the contact with her GP was maliciously motivated, I have no evidence to show that this was the case. In any event, in my view the HSE acts upon information such as the type at issue in this case in good faith. The disclosure of the identity of the caller, even where there may be evidence to suggest that the call was maliciously motivated, could, in my view, prejudice the flow of information from the public. Accordingly, I consider that the information was given to the GP in confidence and consequently, that the second requirement of section 23(1)(b) is also satisfied.

Third Requirement
Finally, in her submission to this Office the applicant argues for the release of the identity of the person who contacted her GP on the basis that the welfare of a child is concerned. While I have no evidence of how the child's welfare would be affected, the Child Care Act 1991 imposes a legal obligation on the HSE (under sections 3(1) and 3(2) of that Act) to "promote the welfare of children in its area who are not receiving adequate care and protection" and provide that, in the performance of this function, it shall "co-ordinate information from all relevant sources relating to children in its area". Accordingly, it is my view that the information given relates to the enforcement or administration of the civil law. On this basis I find that the third requirement of section 23(1)(b) has been met.

The Public Interest
However, that is not the end of the matter as section 23(1)(b) of the FOI Act is subject to section 23(3) which provides that consideration must be given to the possibility that the public interest would, on balance, be better served by the release of the information than by refusing to grant the request. It is important to note that the public interest balancing test in section 23(3) differs from the public interest balancing test which exists in other exemptions in that the test in section 23(3) may be considered only where certain circumstances arise. Those circumstances are where the records disclose that an investigation is not authorised by law or contravenes any law or it contains information concerning the performance by a public body of functions relating to law enforcement or contains information concerning the effectiveness or the merits of any programme for prevention, detection or breaches of the law. I am satisfied that no such circumstances arise in this case and that section 23(3) does not apply. On this basis, all of the requirements for the application of section 23(1)(b) have been satisfied.

In conclusion, I consider that the HSE was justified in deciding to refuse access to the identity of the person who called the GP with concerns about the applicant's behaviour on the grounds that section 23(1)(b) of the FOI Act applies. Having so found, it is not necessary to consider the exemption claimed by the HSE under section 28 of the Act.

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.

Sean Garvey
Senior Investigator