Whether the Agency was justified in refusing the applicant's request for access to records relating to him on the basis of section 28 of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, Office of the Information Commissioner (authorised by the Information Commissioner to conduct this review)

Background

In a request dated 13 February 2014, the applicant sought access to "documents and information" held by the Health Service Executive (HSE) regarding himself. The HSE replied on the 26 February 2014 requesting clarification and further details of the scope of the applicant's request. The applicant, on 11 March 2014, stated that the information he sought was probably held by the Children and Family Services. A decision letter refusing access to records was sent to the applicant from one HSE area. However, the applicant was advised that records had been located in another area and he would have a decision on that in due course. On 14 July 2014, a decision was made by the Agency to partially grant the request. On 21 July 2014, the applicant requested an internal review of the Agency's decision. On 6 October 2014, the applicant was notified of the outcome of the internal review. 72 records were identified as being covered by the request at internal review stage. 33 records were released in full to the applicant. 23 were partially released and access to 16 records was refused in full on the basis of section 28 of the FOI Act.

On 23 October 2014, the applicant applied to this Office for a review of the Agency's decision.

I have now completed my review in accordance with section 34(2) of the FOI Act. In carrying out my review, I have had regard to the provisions of the FOI Act and to the submissions made by the Agency and by the applicant. I have also examined the files which were provided to this Office for the purposes of the review and the correspondence that was exchanged between the parties.

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completed before the commencement of the 2014 Act shall continue and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

This review is concerned solely with records that relate to the applicant. The initial request was for "all documents and information held by the HSE regarding myself". This is important to note because, given the nature of the records, there is a considerable amount of joint personal information and information that relates to persons other than the applicant (third parties).

The Agency provided three files to this Office for review; File 1, File 2 and "Correspondence to and from [applicant]". Three records from File 1 were released in full to the applicant and access to the rest of this file was refused on the basis that it was not covered by the request. Having reviewed these records, I am satisfied that they do not relate to the applicant and therefore are not within the scope of this review. Access was granted in full to the records contained on the file "Correspondence to and from [applicant]". The records which are the subject of this review are therefore contained on File 2 and this review deals solely with that file. Any reference to record numbers throughout this decision is a reference to the record number assigned to records on File 2.

The vast majority of the records on the file provided by the Agency relate to third parties, in particular, to the applicant's son, his former partner (the mother of his son) and her other children who are not biologically related to the applicant.

During the course of the review, the Agency agreed to further release records 2, 18 and 32 in full. On examination of the records it also appears that records 5 and 39 do not contain any information in relation to the applicant and are therefore not covered by the scope of the request.

The Investigator in this Office identified a further six records that, although primarily relating to third parties, do contain some mention of the applicant and are therefore within the scope of the applicant's request. Those records are numbered 32, 80, 90, 93, 94 and 110.

This review is therefore concerned with 78 records. 36 of those records were released in full. 21 records were released with redactions and access to a further 21 records was refused on the basis of section 28 of the FOI Act.

Analysis and Findings

Preliminary Matters
Before dealing with the relevant exemptions, there are some preliminary points I wish to make.

The first point to note is that, under section 8(4) of the FOI Act, the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act). It is worth mentioning that it is outside the remit of the Information Commissioner to carry out any investigation or make any findings on how the public body carried out its duties in the circumstances surrounding a review, but rather the Commissioner's role is to determine whether or not records were properly withheld.

The second 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 and Personal Information

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 "(i) information relating to the educational, medical, psychiatric or psychological history of the individual," and "(vi) information relating to the religion, age, sexual orientation or marital status of the individual".

It is quite clear that the records at issue in this case disclose the personal information of parties other than the applicant and that much of this information is of a private and sensitive nature. The information that has been redacted or refused by the Agency can broadly be broken down into two categories; information relating to third parties and joint personal information relating to the applicant and other individuals.

Section 28(1) provides that a public body shall refuse to grant access to a record where access would involve the disclosure of personal information, including personal information relating to a deceased individual.

I am satisfied that access to thirteen records, or portions of records, 6, 9, 15, 17, 29, 39, 41, 48, 58, 104, 107, 111 and 113 was properly refused by the Agency on the basis of section 28(1) of the Act. The information contained in these records does not refer to the applicant and relates solely to third parties. Arguably, the information does not come within the scope of the request as it does not relate to the applicant. However, my reasons for finding that section 28(1) applies are set out below in the context of personal information of other individuals where it appears in the records with the applicant's personal information.

The remaining twenty nine records, namely records 7, 10, 11, 31, 37, 38, 40, 42, 43, 80, 84, 85, 90, 93, 94, 100, 101, 108, 109, 110, 114-121 and 157, contain the joint personal information of the applicant, his son, the mother of his son and her other children.

In the normal course, an FOI requester will be entitled to access his or her own personal information; but where the requester's personal information is inextricably linked with the personal information of one or more third parties, as is the case here, then section 28(5B) of the FOI Act applies.

Section 28(5B) of the FOI Act provides that where a record contains joint personal information, that is, personal information about two or more individuals, third party information must, subject to the other provisions of section 28, remain protected.

Section 28(5)

Section 28(5) provides that personal information of a party other than the requester may be released 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 information would be to the benefit of the person to whom the information relates.

Public Interest

In order to apply the public interest test provided for at section 28(5)(a), it is necessary to identify the public interest which would be served by the release of the records and make a judgement as to whether, on balance, that public interest outweighs the public interest in protecting the privacy rights of the individuals concerned. The FOI Act itself recognises a very strong public interest in protecting privacy rights, as reflected 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"). Under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large. 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 the right to privacy.

The applicant has highlighted the importance of the public interest in the exercise of public functions. The FOI Act itself reflects a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business. Thus, in this case, I find that there is a general public interest in openness and accountability as to the manner in which the HSE carried out its functions in relation to the applicant and his child. There is also 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.

I am satisfied that the public interests in this case in openness, accountability and fair procedure have been met already to a considerable extent. The records that have been released by the Agency to the applicant contain a great deal more information than, strictly speaking, fell to be released under the FOI Act given the relatively narrow scope of the request. I am not satisfied that the significant invasion of the privacy rights of the applicant's child, former partner and her children, 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)

Section 28(5)(b) provides that the personal information of a third party may be released where the grant of that information would be to the benefit of the person to whom it relates. I am not aware of any argument that release of these records to the applicant would benefit either his son, his son's mother or her other children. I find therefore that section 25(5)(b) does not apply in this case.

Section 28(2)

The general protection for personal information may also be set aside on grounds provided for elsewhere in section 28.

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, there is no evidence that the child's mother has consented to her personal information being disclosed. The applicant's child is now almost 4 years of age and considered too young to seek his views as to whether or not he consents to his father having access to his personal information. I find, as a matter of fact, that neither the child nor his mother have consented to the release of their personal information and that, accordingly, section 28(2)(b) does not apply.

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 section 28(2)(e) does not apply in this case.

Section 28(6) and the 2009 Regulations

Given that some parts of the withheld records relate to the applicant and his son, it might be argued that he has a potential right of access those parts of such records. Section 28(6)(a) provides for the making of regulations under which the parent or guardian of a person belonging to a specified class of persons may have a right of access to that person's personal information. The regulations of relevance here are contained in S.I. No. 387 of 2009 and deal in particular with the personal information of minors. The regulations provide for a right of access by parents or guardians to records containing personal information relating to minors in certain circumstances. The regulations provide that a request for records relating to personal information about a minor shall be granted where the requester is the minor's parent or guardian and 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.

In this case, the applicant has not specifically made a request for records relating to the personal information of his son. It might be argued that where the son's personal information intersects with that of the applicant that this could still be considered information which relates to the applicant. However, the instances of the applicant's information intersecting solely with his sons are minimal and appear in records which also contain the personal information of third parties. As set out above, the Commissioner, generally speaking, is not in favour of the cutting or "dissecting" of records to such an extent that the copy of the record thus created would be misleading. As the Commissioner's view is 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 I find that it would not be appropriate to direct the release of such individual sentences in this manner.

Overall Finding

The records at issue in this review constitute the personal information of the applicant's child and of that child's mother and her additional children. I find that the records at issue are exempt by virtue of sections 28(1) and 28(5B), and these exemptions are not displaced by any of the overriding provisions within section 28.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Agency to refuse access to the records at issue 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.

Elizabeth Dolan
Senior Investigator