Whether the HSE was justified in its decision to withhold certain information from Public Health Nurse records relating to the applicant and her daughter under section 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 submitted a request to the HSE on 11 December 2013 for access to records held by two named public health nurses relating to herself and her daughter. The HSE issued a decision on 2 April 2014 part-granting the request, with some records withheld in part on the basis that they contained the personal information of third parties within the meaning of section 28.

The applicant applied for internal review of that decision on 22 July 2014. In its internal review decision of 22 August 2014 the HSE affirmed its original decision.

The applicant applied to this Office on 26 August 2014 for a review of the HSE's decision. During the course of the review and following correspondence with Mr Logan of this Office on the matter, the HSE decided to grant access to additional parts of certain records previously withheld. Mr Logan subsequently emailed the applicant to determine if she was satisfied with the additional information released. As the applicant has made no further contact with this office, I have decided to conclude the review by issuing a binding decision. In conducting the review, I have had regard to correspondence between this Office and both the applicant and the HSE, and to the correspondence between the applicant and the HSE on the matter. I have also had regard to the contents of the records sought, copies of which were provided to this Office by the HSE for the purposes of this review.

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the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed. In referring to the records at issue, I have adopted the numbering system used in the schedule of records that the HSE issued to the applicant on 25 November 2014, a copy of which was provided to this Office.

Scope of Review

This review is concerned solely with the question of whether the HSE was justified in its decision to refuse access to the certain parts of records 3, 4, 24, 24B, 27, 27A, 28, 31 and 34 under section 28 of the FOI Act.

Preliminary Matters

Section 8(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the records in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the records.

I also wish to make the point that, while I am required by section 34(10) of the Act to give reasons for decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description I can give of the withheld information at issue is limited.

Analysis and Findings

Section 28(1) of the FOI Act provides that a public body shall refuse to grant a request if access to the record concerned 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 a request if 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, commonly referred to as joint personal information. I am satisfied that the records at issue contain personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals. I find, therefore, that sections 28(1) and 28(5B) apply.

Under Section 28(2) there are some circumstances in which the exemption at sections 28(1) and 28(5B) do not apply. Having examined the record at issue, I am satisfied that none of those circumstances arise in this case.

Section 28(5) of the FOI Act provides that a request, which would fall to be refused under section 28(1) and section 28(5B), may still be granted 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 aforesaid,"

In my view the grant of the request would not benefit the individual or individuals to whom the information relates. I find that section 28(5)(b) does not apply in this case.

In considering the public interest test at section 28(5)(a), I have had regard to 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, available at www.oic.gov.ie. In the judgment, the Supreme Court 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 Long Title of the FOI Act reflects that there is a general public interest in openness and transparency with respect to information held by public bodies, provided that it is consistent with the right to privacy. There is also a strong public interest in openness and accountability in relation to the manner in which public bodies carry out their functions. On the other hand, 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.

In this case, I consider that the public interest factors in favour of release are, to a large extent, satisfied by the release of the information that has already been released to the applicant. The question I must consider is whether the release of the withheld information would further serve that public interest to the extent that it would outweigh the privacy rights of the third party or parties about whom the information relates. I am satisfied that it does not. Accordingly, I find that section 28(5)(a) does not apply.

I find, therefore, that the HSE was justified in refusing access to the information at issue under section 28 of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the HSE's decision to refuse access to the remaining parts of records 3, 4, 24, 24B, 27, 27A, 28, 31 and 34 under section 28 of the FOI Act.

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