Whether the HSE was justified in its decision to refuse access to a protected disclosures inquiry report concerning the care of an individual on the basis that there are ongoing investigations and the record contains personal information of third parties that is exempt under the provisions of sections 21(1)(a) and 28(1) 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

On 15 July 2014 the applicant made a request to the HSE under the FOI Act for access to a named protected disclosures inquiry report (the Report).

In its decision dated 29 September 2014 the HSE refused access to the Report under the provisions of section 21(1)(a) and section 28 of the FOI Act on the basis that the Report forms part of an ongoing investigation into the care and treatment of the individual who is the subject of the Report and that release of the Report even in redacted form would disclose sensitive personal information of third parties. On 8 October 2014 the applicant sought an internal review of the HSE's decision. By letter dated 31 October 2014, the HSE informed the applicant that it had decided to uphold the original decision. In her letter dated 20 November 2014 the applicant wrote to this Office requesting a review of the HSE's decision.

On 5 March 2015 the HSE wrote to this Office stating that it intended to publish the Report in April following consultation with the Office of the General Solicitor for Minors and Wards of Court and An Garda Síochána. On this basis, Mr Richard Crowley, Investigator, contacted the applicant and agreed that this Office would suspend its review to await the HSE's decision on publishing the Report. Subsequently, in its letter of 12 June 2015 to this Office, the HSE indicated that it was still not in a position to release the Report at this time. Mr Crowley contacted the applicant by phone on 16 June 2015 at which time she indicated that she wished this Office to issue a decision on the matter. Mr Crowley wrote to the HSE on 29 July 2015 expressing his view that a number of the recommendations contained in the Report should be released and invited the HSE to make any further submissions before recommending a decision to this effect. After consulting the Garda, the HSE made a further submission to this Office on 13 August 2015 contending that the Report is exempt under section 23(1)(a)(i) of the FOI Act as its release may adversely affect ongoing investigations. I consider it appropriate to conclude my review of this matter at this time by way of a formal binding decision.

In conducting my review, I have had regard to the HSE's decision in this matter, to correspondence between this Office and the HSE, to correspondence between the applicant and the HSE and to contact between the applicant and this Office. I have also had regard to the Report in question and to the provisions of the FOI Act.

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 the Review

This review is concerned solely with the question of whether the HSE was justified under the provisions of the FOI Act in its decision to refuse access to the Report sought by the applicant.

Preliminary Matters

Before setting out my findings, I should point out 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(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record. This constraint means that, in the present case, the extent of the reasons that I can give is limited.

Secondly, section 13 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. However, the Commissioner takes the view that neither the definition of a record under section 2 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.

It is relevant to note, as a preliminary matter, that section 8(4) of the FOI Act does not allow this review to have regard to any reasons as to why the applicant is seeking the record (although such reasons may be relevant to consideration of the public interest). Finally, it is relevant that the Courts have found that the release of a record under the FOI Act is akin to its release to the world at large.

Analysis and Findings

Section 28 of the FOI Act
Section 28(1) of the FOI Act provides that a public body shall refuse to grant access to a record where access would involve the disclosure of personal information relating to a person other than the requester.

In its submission to this Office the HSE contends that the disclosure of the Report even in its redacted form to the applicant would disclose sensitive personal information from which the client (the subject to the Report) would be readily identifiable by the applicant and perhaps others with background knowledge of the matters the subject of the Report. While the identity of individuals is redacted in the Report, I am satisfied that release "to the world" of the Report in full may lead to the disclosure of the personal information of third parties. Under FOI the record released cannot be restricted to the applicant. Accordingly, I find that section 28(1) of the Act applies to the Report, with the exception of the Terms of Reference in Chapter 1 of the Report (other than the name of the Agency employing those who made the disclosure), the Methodology contained in Chapter 2.1 of the Report and a number of recommendations contained in Chapter 7.

In regard to the recommendations contained in the Report, I am satisfied that those recommendations in sections 7.1-7.6 and 7.8 (other than section 7.2.6) are intended for general application within the HSE and do not contain personal information. Those parts identified contain information the release of which would not, in my view, lead to the identification of individuals whose personal information would be disclosed, neither would their release be misleading in circumstances where the remainder of the report is withheld. As the recommendations at section 7.2.6 and 7.7 of the Report relate directly to the subjects of the report, I find that the information in those sections is exempt under section 28(1) of the Act. Therefore, I find that Chapter 1 of the Report (other than the name of the Agency employing those who made the disclosure), Chapter 2.1 and the non-personal recommendations contained in Chapter 7.1-7.6 and 7.8 (other than section 7.2.6) are not exempt under section 28 of the Act.

Having found section 28(1) applies to most of the Report, I must proceed to consider a number of other relevant provisions of section 28. Section 28(2) of the FOI Act sets out certain circumstances in which the exemption at section 28(1) does not apply. I am satisfied that none of those circumstances arise in this case. That is to say, (a) the information contained in the Report does not relate solely to the applicant; (b) the third parties have not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) 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) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 28(5)(a) provides that a record, which is otherwise exempt under section 28, may be released 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. However, I do not consider that the release of the personal information in the Report would serve the public interest to such an extent that a breach of the third parties' Constitutional rights to privacy is justified. I find, therefore, that section 28(5)(a) of the FOI Act does not apply.

Section 28(5)(b) provides that a record which has been found to be exempt under section 28 may still be released if it can be demonstrated that the grant of the request would benefit the third party or parties whose information would be released. Having reviewed the record, I do not consider the release of the personal information of the third parties would "benefit the individual[s]" to whom it relates. Therefore, I find that section 28(5)(b) of the FOI Act does not apply.

Terms of Reference, Methodology and non-personal Recommendations

As I have found that the Terms of Reference in Chapter 1 of the Report, Methodology in Chapter 2.1 of the Report and non-personal recommendations in Chapter 7 of the Report are not exempt under section 28 of the Act, I must now consider whether the HSE was justified in refusing those parts of the report under the other exemptions it claims as a basis for refusing access to the applicant.

Section 21 of the FOI Act
Section 21(1)(a) of the FOI Act provides that "A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to -
(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof"
In its submissions to this Office the HSE contends that there are two possible grounds for refusal of disclosure of the Report: (i) the release of the Report is reasonably expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body; or (ii) the release of the Report is reasonably expected to prejudice the procedures or methods employed for the conduct of these of tests, examinations, investigations, inquiries or audits. The HSE states that the Report forms part of a broader ongoing investigation which incorporates an investigation into the care and treatment of certain services users arising from protected disclosures which related to foster care provided to service users in a particular area. The HSE argues that the early release of the Report could reasonably be expected to prejudice these broader ongoing investigations stating that the release of the Report may have the potential to inhibit the co-operation which it receives investigating matters in the context of the subsequent report, for example in respect of its access to individuals and the willingness of individuals (both inside and outside the HSE) to cooperate with the investigations.
In arriving at a decision to claim a section 21 exemption, a decision maker must identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The test of whether the expectation is reasonable is not concerned with the question of probabilities or possibilities. It is concerned simply with whether or not the decision maker's expectation is reasonable. However, to satisfy the Commissioner of the reasonableness of the decision, it is essential that the decision maker explain how and why he or she believes release of the particular record will give rise to the harm envisaged. As I have found that most of the Report is exempt as it contains personal information, at this point I need only consider whether the non-personal information contained in the report, as outlined above, is exempt under section 21(1)(a) of the Act.

The HSE has not explained how the release of parts of the Report, including the Terms of Reference, Methodology and the non-personal recommendations, could reasonably be expected to give rise to the harm identified in section 21(1)(a) and in my view those parts identified above do not contain any information which would give rise to the harms envisaged by this section of the Act. Accordingly, I find that the HSE was not justified in refusing access to those parts of the Report under section 21(1)(a) of the Act.

Even if I were satisfied that access to the Terms of Reference, Methodology and non-personal recommendations could reasonably be expected to prejudice the effectiveness of investigations, section 21(2) of the Act provides that the exemption shall not apply in a case in which, in the opinion of the head of the public body, the public interest would, on balance, be better served by granting than by refusing to grant the request. In her request for an internal review by the HSE, the applicant stated that she initiated and participated in the process leading to the commissioning of the inquiry, owing to her concerns for the service user involved. The applicant also refers to the learning which can be garnered for her organisation and others from accessing the Report. In its submissions to this Office the HSE has acknowledged the public interest in publishing a redacted version of the Report and stated its intention to publish the Report, although the timing for this publication seems uncertain at this point. Any decision on publication of the Report is a matter for the HSE. However, in my view there is a strong public interest in the HSE being open and transparent in matters related to the care of those accessing its service, and particularly the vulnerable. I acknowledge too that there is also a public interest in public bodies being able to carry out effective investigations into sensitive matters such as those at issue in this case. On balance, having considered the matter, I consider that the release of the Terms of Reference, Methodology and non-personal recommendations would serve to increase the transparency of the HSE's review of care issues which are the subject of the report, without adversely affecting any other investigations into those matters and without compromising the personal information of the subjects of the Report.

Section 23 of the FOI Act
In its submission dated 20 February 2015 to this Office, the HSE suggested that the exemption at section 23(1)(a)(i) may potentially apply in the light of ongoing Garda investigations.

Section 23(1)(a)(i) of the FOI Act provides for the refusal of access to a record where such access could, in the opinion of the head, reasonably be expected to "prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid."

Section 34(12)(b) of the FOI Act places the onus on the public body of satisfying the Commissioner that its decision to refuse to grant a request was justified. While the HSE referred to section 23(1)(a)(i), it did not present any meaningful argument to this Office as to how that exemption applies in regard to the Report at issue here, other than the potential to affect ongoing Garda investigations. During the course of this review this Office invited the HSE to address the relevance of its comments that section 23(1)(a)(i) may apply to the Report. The HSE made a further submission indicating that the Gardai requested that it does not release the Report at this time as the release of it may adversely affect ongoing investigations.

Having reviewed the HSE's submissions in this case, I find that it has not satisfactorily explained how release of the Report could be reasonably expected to give rise to any of the harms in sections 23(1)(a)(i) of the Act. The mere assertion that release of the Report will effect ongoing investigations without explaining precisely why or how the harm to these investigations will occur from the release of the Report is inadequate justification for refusing access to the Report. In my view, the non-personal parts of the Report, as outlined above, do not contain any information which would give rise to the harms envisaged by this section of the Act. I am satisfied that nothing in those parts could, if released under FOI, reasonably be expected to prejudice or impair any Garda investigation. Accordingly, I find that the HSE was not justified in refusing access to the Report under section 23(1)(a)(i) of the Act.

Summary

I find that the HSE was justified in its decision to refuse access to the Report, other than the non-personal parts of that Report, including the Terms of Reference in Chapter 1 (except the name of the Agency employing those who made the disclosure), the Methodology contained in Chapter 2.1 and the recommendations contained in Chapter 7 of the Report (other than sections 7.2.6 and section 7.7).

Decision

Having carried out a review under Section 34(2) of the FOI Act, I hereby vary the decision of the HSE in this case. I affirm its decision to refuse access to the Report under section 28 of the FOI Act, except the non-personal parts set out above. I find that the HSE was not justified in refusing access to those non-personal parts of the Report under sections 28, 21(1)(a) or 23(1)(a)(i) of the Act. Accordingly, I direct the release of these parts of the Report.

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