Whether the HSE's decision to refuse the applicant's request for access to records concerning an investigation into the immunisation of her child was justified under section 30 of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 12 November 2014, the applicant made a request to the HSE for "all information relating to [her] complaint" regarding the immunisation of her child. On 10 December 2014, the HSE declined the request. On 19 December 2014, and again on 20 January 2015, the applicant sought an internal review of the refusal. The decision was upheld by the HSE on internal review. On 2 February 2015, the applicant sought a review of the HSE's decision.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the relevant records, to the submissions of the parties, and to the provisions of the FOI Act.

Scope of the Review

The scope of this review is concerned solely with whether the HSE was justified in refusing to release the requested records to the applicant.

Preliminary Matters

On 16 February 2015, this Office advised the HSE that it appeared from the records submitted that the HSE had not issued its internal review decision within the three week timeframe specified in the FOI Act (section 21(4)). On 25 February, the HSE apologised for the "delay in acknowledging the review request" of 19 December 2014.

On 24 March 2015, Stephen Rafferty, Senior Investigator in this Office, wrote to the Director General of the HSE to advise that, in his opinion, the information provided in both the initial decision and the internal review decision fell well short of the requirements of section 21(5)(c) of the FOI Act. Pursuant to the provisions of section 23, Mr Rafferty directed the Director General to furnish a written statement to this Office, within three weeks, containing a statement of the reason(s) for refusal of the request, to include an identification of the relevant provisions of the FOI Act and the findings on any material issues relevant to the decision and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision. On 14 April 2015, the HSE furnished the statement as directed.

Findings

It should be noted that the courts have taken the view that, 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. Additionally, while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 25(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 which I can give of the records at issue is limited.
The records at issue are contained within five files, and concern an investigation into a complaint by the applicant regarding the immunisation of her child. In January 2014, the applicant initiated her complaint. In February 2014, the HSE commenced a "Trust in Care" investigation. Interviews were held with staff involved in the vaccination of the applicant's child, and other relevant persons. In September 2014 a preliminary report was furnished to the staff and to the HSE's area manager. Submissions were received from staff and from the Irish Nurses and Midwives Organisation (INMO) and the Irish Medical Organisation (IMO). Following consideration of these submissions, the area manager decided not to accept the report's content or findings.

On 10 December 2014, the HSE wrote to the applicant (separately to its decision letter regarding her FOI request) to explain why the report had not been accepted. In its letter, it quoted from the submission of the IMO, which had stated that "There are serious factual inaccuracies and inconsistencies...with a complete disregard for procedure by the investigation team...[The "Trust in Care" policy guidelines] were significantly deviated from by the team undertaking the investigations which may render the investigation process invalid." In its submissions to this Office, the HSE has provided further details of the procedural flaws.

Section 30

The HSE has sought to rely on section 30(1)(a) of the FOI Act, which provides that an FOI body may refuse to grant a request if access to the records could reasonably be expected to prejudice the effectiveness of, inter alia, investigations conducted by or on behalf of the FOI body, or the procedures or methods employed for the conduct thereof.

In arriving at a decision to claim a section 30 exemption, an FOI body must, firstly, 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 with whether or not the FOI body's expectation is reasonable.
In Sheedy v. Information Commissioner [2005] IESC 35, [2005] 2 IR 272, Kearns J. stated, in relation to section 21(1) of the FOI Acts 1997 and 2003 (which is similar to section 30(1) of the 2014 Act), that "the onus to produce evidence of prejudice fell on the Department and in the absence of same the Commissioner was entitled...to hold against the Department. A mere assertion of an expectation [of prejudice] could never constitute sufficient evidence in this regard". Thus, in the present context, I consider that the HSE must show some evidence of prejudice if its reliance on section 30(1)(a) is to be justified.
The HSE contends that the right to fair procedures and natural justice of the staff involved would be prejudiced if the records were to be released. It further states that a "systems review" of the complaint is underway, and that the release of the records could reasonably be expected to prejudice the effectiveness of this review. It states that the release of the records "may result in a negative impact for the system review process as a whole and would lessen any benefits that would most certainly accrue from a further similar review."

Having considered the records, I am of the view that granting the applicant's request could reasonably be expected to prejudice the effectiveness of the systems review, and/or any possible future review or investigation of the complaint concerning her child's immunisation. The records include certain findings about the conduct of members of staff of the HSE that were arrived at in circumstances where fair procedures were not afforded to them. Consequently, I am of the view that it is reasonable to conclude that these findings are unreliable, and that their release would be likely to negatively impact on a further investigation of the complaint, by exacerbating the tensions that already exist between the various parties. In my opinion, the release of the records to the applicant at this stage would result in a genuine risk of prejudice to the "systems review" which the HSE has advised is currently ongoing and has not been concluded. Consequently, I find that section 30(1)(a) is engaged in this instance.

Section 30(2) provides that subsection (1) shall not apply in relation to a case in which, in the opinion of the FOI body concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request. Therefore, I must now consider the public interest in this case.
The HSE acknowledges the public interest in openness and transparency; however, it contends that the applicant's request is based on her private interest. It also states that there is a public interest in preserving the staff members' right to privacy and their good names. It argues that the public interest favours refusing access to the records.

I do not accept the HSE's contention that the applicant's interest in the records is purely a private interest, as I believe that there is a strong public interest in openness and transparency regarding the manner in which the HSE carries out its functions, including in relation to health and social services it provides and the manner in which it investigates complaints regarding such services. In this case, however, the HSE has admitted that its investigation is not considered to be reliable for procedural reasons.

The applicant is understandably aggrieved at the manner in which her complaint has been handled. However, I am satisfied that, on balance, it would not serve the public interest in this instance to release records under FOI that were prepared without due regard for the requirements of natural justice and fair procedures. I believe there is a clear public interest in ensuring the efficacy and accuracy of investigations into the conduct of the HSE, and for the reasons already stated, I consider that the release of the records would be likely to impede this aim. A similar approach was taken by this Office in Case 120205 (Ms X & HSE).

It should be noted that I have considered whether it would be appropriate to release some of the records concerned, and/or whether records could be released in a redacted form. However, for the reasons set out below, I do not believe that this is possible, as even a redacted copy would identify named persons.

Section 37

I am satisfied, as set out above, that the records should not be released on the basis of the section 30 exemption. However, during the course of the investigation of this appeal, Simon Noone, Investigator with this Office, raised the issue with the parties of whether the exemption provided for by section 37, i.e. personal information, might also be relevant. While this exemption was not raised by the HSE, either in its response to the original request or in its submissions to this Office, I believe that it is appropriate that it be considered by me, given that it is a mandatory exemption under the FOI Act.

Section 37(1) states that "Subject to this section, a head shall refuse to grant an FOI request if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information..."

"Personal information" is defined in section 2 as inter alia, information relating to the employment or employment history of the individual. In considering whether this exemption is applicable, I am particularly mindful of the fact that the identity of at least one of the staff members involved in the immunisation of the applicant's child was revealed to the applicant. This was done in breach of the "Trust in Care" policy guidelines and was one of the procedural failings identified by the INMO. Consequently, in my view, the records constitute personal information, in that they are records relating to the employment of at least one of the staff members of the HSE who were subject to investigation. In my opinion, the records contain sensitive personal information concerning at least one identifiable staff member.

I am satisfied that the provisions of section 37(2), in relation to various exceptions to this mandatory exemption, do not apply, and therefore the records are exempt unless the public interest test, as set out in subsection (5), favours release. This test states that

"Where, as respects an FOI request the grant of which would, but for this subsection, fall to be refused under subsection (1), in the opinion of the head concerned, 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,

the head may, subject to section 38 , grant the request."

As the records contain sensitive information about the employment history of at least one named individual, which was compiled in circumstances that did not afford fair procedures to that individual, I am satisfied that granting the request for access to the records would not benefit the individual concerned, and consequently I find that paragraph (b) does not apply.

In respect of paragraph (a), in my view the factors that favour the release of the records include the public interest in knowing how the HSE carried out its investigation and ensuring best practice in the performance of its functions. Against this, there is a public interest in upholding the individual's right to privacy. This right is constitutionally protected, and the Commissioner has previously noted that the public interest in protecting the right to privacy is a strong one; see e.g. Case 99397 (Mr X and a Health Board).

In all the circumstances, I am satisfied that the public interest does not favour the release of the records in question. I believe that the right to privacy of the employee(s) is particularly strong in this instance. The records, containing very sensitive and contentious matters concerning the individual's employment with the HSE, were prepared in circumstances that were not in compliance with the public body's own procedures for investigation. As has been seen, the HSE has repudiated the findings of the report. I am therefore satisfied that the release of the records would constitute a significant breach of its employee's constitutionally protected right to privacy, and in my opinion the public interest in upholding this right to privacy outweighs the public interest (such as it is) in releasing the records.

Finally, I should note that the records in question contain personal information concerning the applicant's child, and that therefore she has an entitlement to seek the release of the records pursuant to reg. 4(1)(a) of the Freedom of Information Act 1997 (Section 28(6)) Regulations 2009 (SI 387/2009). However, section 37(7) provides that a request for access shall be refused 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." Therefore, as I have found that the release of the records would disclose personal information relating to at least one HSE employee, access to the records falls to be refused, notwithstanding that they contain personal information concerning the applicant's child.

In conclusion, therefore, for the reasons set out above, I find that that section 30(1)(a) and section 37(1) apply to the records under review, and consequently I am satisfied that they should not be released.

Decision

Having carried out a review under section 22(2) of the Act, I hereby affirm the HSE's decision to refuse access to the records at issue.

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 four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator