Whether the Agency was justified in its decision to refuse a two-part request for access to records relating to a report concerning child abuse prepared by the HSE under sections 26 and 28 of the FOI Act.

Conducted in accordance with section 34(2) of the FOI Act, by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.

Background

The applicant made a request to the Agency on 31 March 2014 for access to:
- Aon taifead, meamram, tuarascáil srl a bhaineann leis an chás mí-úsáid in éadan (Mr A).
- An Tuarascáil a chur an Ghníomhaireacht um Leanaí agus Teaghlach le chéile faoin chás.

On 1 May 2014, the HSE informed the applicant that it had not been furnished with the relevant file by the Agency in order to make a decision on the applicant's request and that it was therefore referring the request for internal review by the Agency. The applicant also applied for internal review on 22 May 2014. In its internal review decision of 12 June 2014, the Agency refused the applicant's request under sections 26 and 28 of the Act. However, in doing so, the Agency gave consideration only to the report that was the subject of the second part of the request, and not to the other records requested by the applicant in the first part of her request.

The applicant wrote to this Office on 14 July 2014 seeking a review of the Agency's decision.

During the course of this review, the Agency provided this Office with a redacted copy of the report at issue that it was prepared to release to the applicant in an effort to settle the matter. The applicant did not accept this proposed settlement. Subsequently, the Agency withdrew its offer to release a redacted copy of the report and reverted to its position that the full report should be withheld.

In a submission to this Office, the Agency contended that the records that are the subject of the request are exempt from release under various sections of the FOI Act. It acknowledged that it had neglected to consider the first part of the applicant's request but submitted that such records would also be exempt under the sections specified.

In conducting this review, I have had regard to the submissions and decision of the Agency, and to correspondence between the applicant and the Agency and HSE on the matter. I have also had regard to the content of the relevant report, 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, and, in considering the public interest test 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 (the Rotunda judgment).

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

This review is concerned solely with the question of whether the Agency was justified in its decision to refuse access to the records sought by the applicant.

Analysis and Findings

Part 1 of the FOI Request
Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to the Commissioner's satisfaction that its decision was justified. I do not consider the Agency to have justified its refusal of records captured by part 1 of the request. It is open to me to direct the release of records whose refusal has not, in my view, been justified. However, such records are likely to refer to third parties and their release might adversely affect the interests of those third parties. It is not appropriate to make a decision affecting the interests of a third party solely on the basis that the relevant public body has not properly justified its decision to refuse access to records under the FOI Act.

The Agency accepts that it has not undertaken any consideration of the records coming within the scope of the first part of the applicant's request. It has offered no explanation for not having done so. In such circumstances, the Agency cannot be said to have justified its refusal of the relevant records. I find accordingly.

Part 2 of the Request
I should explain, at this stage, 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. I also have to refrain from disclosing information which a public body contends is contained in an exempt record so as to preserve that party's right of further appeal. These constraints mean that, in the present case, the extent of the reasons which I can give is limited. I can say, however, that the report at issue is, in essence, a report on the manner in which the HSE responded to a referral relating to child protection concerns.

The Agency claims that the report at issue is exempt from release pursuant to the provisions of sections 21, 23, 26 and 28 of the FOI Act. As I have outlined above, during the course of the review the Agency offered to release the report in part in an effort to settle the review and it provided this Office with a copy of the report with the various redactions proposed and the exemptions upon which the redactions were based, namely sections 26 and 28, and one small redaction under section 23(1)(b). Notwithstanding its subsequent withdrawal of the offer to part-release the report, it seems to me that the offer to part-release was an implicit acceptance by the Agency that the parts of the report proposed for release were not exempt under sections 26, 28 or 23(1)(b). Having carefully considered the relevant information, I am satisfied that the information that the Agency was prepared to release is not exempt from release under sections 26, 28 or 23(1)(b) and I find accordingly.

On the matter of whether the redacted parts of the report are exempt, it seems to me that all of the redactions, with one small exception, fall to be considered under section 28. The exception is a redaction that the Agency claims to be exempt under section 23(1)(b) and I will address that matter separately.

Section 28
Section 28 of the FOI Act provides that a public body shall refuse to grant access to information where access would involve the disclosure of personal information relating to a third party unless it considers that the public interest in granting access would, on balance, outweigh the right to privacy of the individual to whom the information relates. For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. However, the Act further provides that certain information is excluded from the definition of personal information, including

"... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid ...".

The Agency contends that the report contains personal information relating to the offender, the victims, and also some staff members. In its submission to this Office, the Agency identified and highlighted various sections of the report that it considered to contain personal information, primarily relating to the offender. Having carefully considered the redactions, I am satisfied that the redacted information relates to personal information of third parties and is exempt under section 28(1). I find accordingly.

During the course of the review, Mr Christopher Campbell of this Office asked the Agency to similarly identify the information contained in the report that was considered to contain personal information of staff. The Agency did not identify any such information or section in the report. Accordingly, having regard to the provisions of section 34(12)(b), I find that the Agency has not shown that any parts of the report are exempt under section 28(1) on the ground that release would disclose personal information relating to its staff

Under Section 28(2) there are some circumstances in which sections 28(1) does not apply. Having examined the redacted information to which section 28(1) applies, I am satisfied that none of those circumstances arise in this case. Section 28(5)(a) provides that a record, which is otherwise exempt under section 28(1) or 28(5B), may be released in certain limited circumstances where 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'.

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 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 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 unenumerated personal rights under the Constitution). 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 in the performance of their functions. This public interest will be served to a certain extent by the release to the applicant of the material not considered exempt in this decision. However, having reviewed the content of the redacted information to which section 28(1) applies, with the exception of the sentence redacted from the first paragraph on page four of the report, I do not consider that its release would further serve the public interest to such an extent that a breach of the third parties' Constitutional rights to privacy is justified. Thus, section 28(5)(a) of the Act does not apply in this case.

On the matter of the relevant sentence on page four, it seems to me that this information is concerned more about the actions of the Agency than about the offender. The information in the sentence relating to the offender is already in the public domain. Accordingly, I find that the public interest in releasing this sentence outweighs, on balance, the public interest in protecting the privacy rights of the individual concerned.

In summary, therefore, I find that the Agency was justified, under section 28 of the FOI Act, in refusing access to the redacted parts of the report as notified to this Office, with the exception of the sentence redacted from the first paragraph on page four of the report and the redaction for which exemption was claimed under section 23(1)(b).

The Agency identified two sections in the report as exempt from release under section 26. As I have found both sections to be exempt under section 28, I do not need to consider this provision further.

Section 23(1)(b)
Section 23(1)(b) of the FOI Act provides that a request for access to a record may be refused if release of the record could "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". I am satisfied that disclosure of the first redaction in the final paragraph on page 4 of the report would reveal the identity of a person who gave information to the Agency in confidence in relation to the enforcement of the civil law and that it is exempt from release under section 23(1)(b). I find accordingly.

Sections 21 and 23(1)(a)
The primary basis on which the Agency contends that the report at issue is exempt from release under sections 21 and 23(1)(a) is that the disclosure of personal information or information which may lead to the identification of persons referred to in the report could give rise to certain harms outlined in those exemptions as confidence in the ability of the Agency to keep information, given in confidence, confidential would be undermined by disclosure of personal information contained in the report. However, apart from the redacted information that I have already found to be exempt, there is nothing in the remainder of the report that could be said to disclose personal information or information which may lead to the identification of persons referred to in the report and that might give rise to the harms identified. Accordingly, having regard to the provisions of section 34(12)(b) of the Act, I find that the Agency has not justified its claim for exemption under sections 21 or 23(1)(a).

Summary

In summary, I find that the Agency was justified in its decision to refuse access to those parts of the record it proposed to redact in the version of the report it sent to this Office in an attempt to settle this case, other than the fifth sentence of page four of the report. Accordingly, I find that the sentence in question and the remainder of the report be released to the applicant.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby annul the decision of the Agency in respect of part 1 of the FOI request and I direct that the Agency undertake a fresh decision making process and inform the applicant of the outcome in accordance with the requirements of the FOI Act. I vary the decision in respect of part 2 of the request and I direct the release of the report with the redaction of information I have found to be exempt under sections 23(1)(b) and 28(1) as outlined above.

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