Whether the HSE was justified in its decision to refuse access to records relating to an investigation into a complaint concerning a Child Safeguarding Committee under section 28 of the FOI Act

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

Background

At the time of the events giving rise to this request for records, the applicant was employed by the HSE. On 14 October 2010, a HSE official informed the applicant that he was investigating a complaint arising from a Child Safeguarding Committee of which the applicant was a member. Apparently, the HSE Investigator invited the applicant to a meeting and said that he would inform the applicant's line manager of this meeting out of courtesy. The applicant wrote to the HSE Investigator raising issues about the matter. Various exchanges followed culminating in a letter of 19 January 2011 from the HSE Investigator to the applicant as follows: "In my original correspondence of the 14th October 2010, I outlined that I had been asked to investigate a complaint which implicated the (named) Child Safeguarding Committee. This investigation has been concluded. Therefore the need for me to meet with you no longer exists. I would emphasise that this letter of complaint did not implicate you in any capacity. Furthermore, it was not a complaint specifically about the (named) Child Safeguarding Committee... As there is no longer any need for us to meet, I have not made contact in this matter with your line manager..."
On 8 September 2014, the applicant made an FOI request to the HSE for all records held in relation to the investigation outlined above. In its decision of 10 October 2014, the HSE identified 106 pages of records as being relevant to the applicant's request. The HSE released 5 pages of records to the applicant and it withheld the remaining records on the basis that they contained the personal information of third parties and were exempt from release under section 28(1) of the FOI Act. The applicant sought an internal review of the HSE's decision. The HSE issued its internal review decision upholding its original decision. On 12 November 2014 the applicant applied to this Office for a review of the HSE's decision. The HSE and the applicant made submissions in support of their positions. On 25 May 2015, the HSE agreed to the release of further information to the applicant following communications with this Office. The applicant was provided with this further information on 28 May 2015. At this stage, I must bring the review to a close by the issue of a formal binding decision as the applicant requires this.

In conducting this review I have had regard to correspondence between the applicant and the HSE, to correspondence between the HSE and this Office, to correspondence between the applicant and this Office, and to the contents of the records at issue.

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

The applicant has made submissions in relation to alleged breaches of Data Protection Legislation and alleged failures by the HSE to follow its own Standard Operating Procedures for dealing with complaints. This Office has no jurisdiction to make findings on these matters as they fall outside the scope of the FOI Act. The HSE identified 106 pages of records as relevant to the request and the records contained in page numbers 28, 54, 59, 65 and 66 were released to the applicant. The scope of this review is confined to whether the HSE has justified its refusal of access to the remaining records.
Preliminary Matters
It has been recognised that a review under section 34 of the FOI Act is de novo which means that it is based on the circumstances and the law at the time of the decision. This view of the Commissioner's role has been endorsed by the High Court in the judgment of O'Caoimh J. in Minister for Education and Science v. Information Commissioner [2001] IEHC 116.

I am required by section 34(1) to give reasons for my decision; this is subject to the requirement of section 43(3) that I take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the circumstances of their creation is somewhat limited. It is important to note also that the release of a record under the FOI Act is considered, effectively, as release to the world at large.

Another matter 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).

Analysis and Findings

Section 28 - Personal Information
Section 28(1) of the Act provides that a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information. Section 2(1) of the Act defines "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or is held by a public body on the understanding that it would be treated by it as confidential. Section 28(2) of the Act provides for certain circumstances in which the exemption at section 28(1) does not apply. Section 28(5)(a) of the Act provides for the release of personal information relating to third parties where this is in the public interest.

Applicant's Submissions

The applicant submitted that because he was not provided with the details of the complaint against him he was denied the opportunity to address the complaint and to have his side of the events heard. The applicant argued that this was a breach of natural justice. The applicant said that he did not wish to have any information regarding any person other than himself; however he submitted that it should have been possible for the HSE to redact the records so as to only give him details of the complaint made against him. The applicant submitted that, as far as he was aware, the complaint against him remains on HSE records. He said that, given the profession he is in, this has serious implications for his ability to work and earn a living as the unanswered allegation would be part of any reference sought by a prospective employer. The applicant contended that the fact that the complainant denied permission to issue a copy of the complaint to the applicant indicates that it may be a vexatious complaint.

HSE's Submissions

The HSE agreed to release information contained in its submissions to the applicant. Thus, the applicant was informed that the records relate to a complaint received by the HSE from an individual and was given a description of the complaint. The HSE submitted that as a consequence of the nature of the complaint, the majority of records relate to other parties and contain those parties' personal information which was considered to be exempt under section 28 of the FOI Act. The HSE pointed out that the complainant was asked by the HSE Investigator for consent to issue the complaint to the applicant and this was declined. The applicant was also advised of this following communications between this Office and the HSE. The HSE pointed out in its submissions that the records referring to the applicant were released to him. The applicant was also advised by the HSE Investigator that the letter of complaint did not implicate him in any capacity and the complaint was not a complaint specifically about the Child Safeguarding Committee.

The HSE relied on section 28(1) of the FOI Act to refuse access to the records at issue. I cannot go into much detail about the nature of the information at issue, due to the requirements of section 43(3) of the FOI Act. However, I can say that I have closely examined the withheld records and I am satisfied that, with one exception -the record contained at pages 30 to 31- the withheld records contain personal information of parties other than the applicant. The records withheld at pages 1 to 15 contain correspondence between the HSE Investigator and third parties which include personal information of these third parties. The records withheld at pages 15 to 27 consist of the Investigator's Report which includes the personal information of the complainant and third parties. As stated above, records 28, 54, 59, 65 and 66 have already been released to the applicant. The remainder of the records from 32 to 106 consist of either correspondence between the HSE Investigator and third parties, handwritten notes of such correspondence, handwritten notes of the HSE Investigator's report, notes of meetings with third parties and documents directly relevant to the investigation. I am also satisfied that none of the circumstances identified at section 28(2) of the FOI Act which provide for exceptions to the mandatory exemption arise in this case.

The applicant submitted that it should have been possible for the HSE to redact the records so as to give him only the details of the complaint made against him. 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. I have examined the withheld records and I am satisfied that they would be misleading if they were redacted so as to remove the personal information of third parties.

The Public Interest

Under section 28(5) access to personal information of a third party may be granted where:

(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or
(b) the grant of the information would be to the benefit of the person to whom the information relates.

I do not believe that the grant of the information would be to the benefit of the third parties concerned and therefore section 28(5)(b) is not applicable in this case. In relation to the question of where the public interest lies, I have had regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] IESC 26 (more commonly referred to as "the Rotunda Hospital case"). In the Rotunda Hospital case, the Supreme Court drew a distinction between private interests and public interests. The comments of Fennelly J. indicate that a request made "by a private individual for a private purpose" is not a request "made in the public interest". Moreover, in the opinion of Macken J., the public interest would require "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law". The FOI Act recognises a very strong public interest in protecting privacy rights - in 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. 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 privacy.

The applicant submits that his rights to vindicate his good name and his ability to work are affected by the actions of the HSE. He also made submissions in relation to whether the complaint made to the HSE was vexatious. I am satisfied that significant weight should be given to the public interest in openness and accountability by public bodies in the exercise of their functions, including those involving HSE staff. However, in relation to the content of the records withheld, what we are dealing with is primarily the personal information of other parties as opposed to details of the HSE's handling of the investigation insofar as the applicant's involvement is concerned. It is not the function of the Information Commissioner to investigate or make findings on whether the complaint made was vexatious. Having carefully considered the matter, including the submissions of the applicant and the HSE, I am satisfied that on balance, the public interest that the third parties' rights to privacy be upheld outweighs the public interest that the request be granted. I find that the records, with the exception of pages 30-31 are exempt under section 28(1) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act 1997, as amended, I hereby vary the decision of the HSE. I uphold the decision of the HSE that section 28(1) applies to all of the withheld records with the exception of the record contained at pages 30 to 31 which I direct be released to the applicant.

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.

 

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Elizabeth Dolan
Senior Investigator