Whether the HSE was justified in its decision to refuse access to records relating to an assessment of the applicant's son on the basis that the records are exempt under sections 26(1)(a) and 28(1) of the FOI Act.

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

Background

The applicant made a request to HSE South, Wilton Road, Cork on 24 August 2010 for access to 'the entire file kept on him in relation to an assessment of his son'. The HSE issued a decision on 6 October 2010 refusing access to the records on the basis of section 10(1)(a) as no records could be found at South Lee Social Work Department. The applicant wrote to HSE South stating that his records may be held in North Lee Social Work Department and requested an internal review of the decision on 16 February 2012. On 28 February 2012 he was advised to apply for an internal review to HSE North Lee on the basis of a non reply to his FOI request which he did on 8 March 2012. As no reply was received to this request, the applicant wrote to the Information Commissioner on 6 June 2012 seeking a review of the HSE decision on the basis of a non reply to his request. On 12 June 2012 the HSE issued an internal review decision releasing records and withholding certain other records and portions of records on the basis of section 26(1)(a) and 28(1) of the FOI Act.

On 29 July 2013, Ms Alison McCulloch, Investigator in this Office wrote to the HSE outlining her preliminary views on this case and considered its response to those views. Ms McCulloch also gave her preliminary views to the applicant on 11 March 2014 and the applicant's solicitor responded on 20 March 2014. During the course of this review additional records were released by the HSE. This case will now proceed to a binding decision.
In reviewing this case I have had regard to the following:

• the HSE's decision on the matter,
• the HSE's communication with this Office,
• the applicant's communications with this Office,
• communications between the applicant and the HSE on the matter,
• the provisions of the FOI Act, 1997 as amended by the Freedom of Information (Amendment) Act, 2003,
• the content of the withheld records, provided to this Office by the HSE for the purposes of this review.

Scope of the Review

This review is concerned solely with the question of whether the HSE was justified in refusing access to the following withheld records on the basis of sections 26(1)(a) and 28(1) of the FOI Acts; for which I have adopted the numbering system used by the HSE.

Records numbered: 2, 4-5, 7-18, 23-33, 38-41, 43-55, 57-58, 64, 66-76, 78, 82-85, 87-88, 90-92, 94-99, 102-104, 106-110, 115, 118-119, 121-123.

Analysis and Findings

Firstly, I wish to clarify that I am unable to give particularly informative descriptions of the content of parts of the records at issue or of submissions made. The provision of more detail could be in breach of section 43(3) of the FOI Act, which provides that I must take reasonable precautions to prevent disclosure of information in an exempt record or information that, if it were included in a record, would cause the record to be exempt.

Record Number 76
The HSE relied on sections 26 and 28 of the FOI Act to refuse access to record number 76. Having examined the record, it seems to me that section 23(1)(b) is most appropriate to the circumstances of this review.

Section 23(1)(b)
Section 23(1)(b) provides that access to a record may be refused where its disclosure 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,".

In order for this exemption to apply, and apart from other more general considerations, three specific requirements must be met:

1. that release of the withheld details could reveal, whether directly or indirectly, the identity of the supplier of the information,
2. that the information was given in confidence and,
3. that the information was supplied to the public body in relation to the enforcement or administration of the civil law.

First Requirement
In this case, the record relates to a call to the HSE about the applicant and the welfare of his child. The HSE refused the record on the basis that release of this record would identify the person(s) who contacted them. I accept that the record would reveal the identity, whether directly or indirectly, of the supplier(s) of the information. Therefore, the first requirement of section 23(1)(b) is met.

Second Requirement
In relation to the second requirement, the Commissioner has generally accepted that, where information relating to the welfare of children is provided to the HSE, it is reasonable to expect that the information will be used only for the purpose for which it was given and that the identity of the informant will be protected insofar as possible. While it may not always be possible to provide absolute guarantees of confidence, such confidence is either implied or expressly mentioned in the normal course. This Office also accepts that the development of a practice of revealing the identities of those making mistaken or unfounded allegations in the area of child welfare would almost certainly reduce the level of reports of child abuse. People with genuine suspicions of child abuse might not inform the HSE in case their identities would be revealed should their suspicions prove to be groundless.

I take account of the HSE's contention that the information was given in confidence. It seems reasonable to work on the basis that, in general terms and in so far as possible, the HSE would receive information relating to alleged child abuse/neglect on a confidential basis even in circumstances where the issue of confidence might not be explicitly mentioned. It is important to the HSE, as the statutory body responsible for securing the health, safety and welfare of children, that it would receive relevant information from as many sources as possible. I accept that an understanding that such information is being given in confidence (at least in relation to the source of the information) is important, as in the absence of such an understanding, it is likely that the flow of information to the HSE may be limited. On that basis, I accept that the information was given in confidence and, accordingly, I am satisfied that the second requirement of section 23(1)(b) is met.

Third Requirement
It is clear to me that the HSE have a duty to investigate allegations or concerns brought to their attention relating to the health, safety and welfare of children. I am satisfied that in receiving information about children in its area who are, or may be, at risk and in carrying out its enquiries or investigations in such matters, the HSE is performing its statutory functions under the Child Care Act 1991. In carrying out its functions in this case, the HSE was engaged in the enforcement and administration of the civil law and I am satisfied that the information was provided in that context and that, accordingly, the third requirement of section 23(1)(b) has been met.

Section 23(3) provides that section 23(1)(b) does not apply in certain specified circumstances where the public interest would, on balance, be better served by granting than by refusing to grant the request. These circumstances are where the record discloses that an investigation is not authorised by law or contravenes any law, where it contains information concerning the performance by a public body of functions relating to law enforcement, or where it contains information concerning the effectiveness or merits of any programme for prevention, detection or investigation of 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, I am satisfied that all of the requirements for the application of section 23(1)(b) have been met. I find that section 23(1)(b) applies to exempt record number 76 from release.

Section 28
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 the personal information of the person making the FOI request and also that of another party or parties.

I am satisfied that the remaining withheld details comprise the personal information of persons other than the applicant and his son, or personal information about the applicant and his son that is inextricably linked to the personal information of other persons ("joint personal information"). The requirements of section 43(3) mean that I cannot elaborate further on the information concerned.

I find the withheld records/portion of records, with the exception of record 76 to be exempt under sections 28(1) and 28(5B) of the FOI Act.

Section 28(2)
There are some circumstances, provided for at section 28(2) of the FOI Act, in which the exemption at section 28(1) does not apply. Having examined the details to which I have found section 28(1) to apply, I am satisfied that none of the circumstances identified at section 28(2) arise in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant or his son; (b) that the third parties have not consented to the release of that 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 details at issue here.

Section 28(5)
Public Interest
Section 28(5)(a) provides for the release of personal information relating to third parties where the public interest that the request should be granted outweighs the public interest in respecting the right to privacy of the individual(s) to whom the information relates. To apply section 28(5)(a), it is necessary to identify the public interest served by the release of the particular record and weigh that public interest against the public interest in preserving the right to privacy of the individual concerned. The public interest in the right to privacy is a very strong public interest; it is a right with a Constitutional dimension as well as being adverted to explicitly in the Long Title to the FOI Act.

The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business and I consider the public interest, in ensuring the HSE's openness and accountability as regards its assessment and treatment of the applicant and his son, to have been served to some extend by the material released to him to date. Whilst acknowledging that release of the remaining details may further serve this public interest, I do not consider the extent to which that public interest would be served to be sufficient to require the breach of the rights to privacy of the third parties whose information is at issue. The applicant's solicitor contends that his client has been unfairly compromised in presenting his position to the Court in the matter of Family Law on many occasions over the past number of years. It is open to the applicant to apply under discovery for any documents which he thinks are required to assist in his defence. Having considered the matter, I agree with the HSE that, on balance, the public interest in release does not outweigh the privacy of the third parties identifiable from the records, so in my view the public interest would be better served by withholding the records/deleted portions of the following records on the basis of section 28:

Records numbered: 2, 4-5, 7-18, 23-33, 38-41, 43-55, 57- 58, 64, 66-75, 78, 82-85, 87-88, 90-92, 94-99, 102-104, 106-110, 115, 118-119, 121-123.

I find the withheld records/portions of the records identified above are exempt on the basis of section 28 of the FOI Act.

As I have found that all of the records at issue are exempt under sections 23 or 28, it is not necessary for me to determine whether the applicant's request also falls to be refused under any other exemption claimed by the HSE.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, 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. Any such 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.

This decision has been appealed to the High Court.

Sean Garvey
Senior Investigator