Whether the HSE was justified in deciding to refuse access to records relating to the applicant and/or her family members on the ground that they are exempt under sections 26 and 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

On 7 July 2014 the applicant made an FOI request to the HSE for two letters which she says a member of staff of the HSE read out to her at a meeting in a nursing home on 14 August 2013. These letters were written by the applicant's nephew and niece. They concern the care of their mother (the applicant's sister), who is now deceased.
By letter dated 29 August 2014, the HSE refused access to both letters on the basis that they were exempt from release under section 26(1)(a) and section 28(5)(b) (sic) of the FOI Act.
On 1 January 2015, the applicant requested an internal review. The HSE issued an internal review decision by letter dated 22 January 2015, in which it affirmed its original decision.
The applicant applied to this Office for a review of the HSE's decision on 26 February 2015.
In conducting my review, I have had regard to the HSE's decision on the matter; the HSE's communications with the applicant and with this Office; the applicant's communications with the HSE and with this Office; the content of the withheld records, 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the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Preliminary Matters

I would like to make the following points at the outset. First, while I am required to give reasons for my decision under section 34(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 43.
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. Section 13 shall not apply if the copy of the record provided would be misleading. I consider the relevance of section 13 below.

Analysis and Findings

Section 28
Sections 28(1) and 28(5B)
As noted above, the records which the applicant seeks consist of two letters. The first letter is referred to as pages 1 and 2 in the HSE's schedule. It does not mention the applicant. The second letter is referred to as page 3 in the HSE's schedule. It does mention the applicant.
I understand from the applicant that the HSE has already disclosed the contents of both letters to her by reading them out at a meeting on 14 August 2013. With certain limited exceptions (e.g. sections 28(2)(a) and 28(6), which I consider below), the FOI Act does not provide for the limiting of the access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.
Section 28(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. The FOI Act defines the term "personal information" 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 is personal without prejudice to the generality of the foregoing definition. These categories include "(i) information relating to the educational, medical, psychiatric or psychological history of the individual" and "(xii) the views or opinions of another person about the individual".

The first letter contains material about the health and the care of individuals other than the applicant. I find that this letter contains personal information which relates to third parties. I therefore find that it is exempt from release under section 28(1) of the FOI Act, since its release would involve the disclosure of personal information (including personal information relating to a deceased individual). It does not contain personal information relating to the applicant.
In contrast, the second letter does contain personal information relating to the applicant. Specifically, it contains certain opinions expressed about her and other family members and information relating to the health and the care of individuals other than the applicant. Accordingly, I find that this letter contains personal information relating solely to third parties, as well as personal information relating both to the applicant and to third parties. I therefore find that this letter is exempt from release under sections 28(1) and 28(5B) of the FOI Act, since its release would involve the disclosure of personal information (including personal information relating to a deceased individual) and personal information relating both to the applicant and individuals other than the applicant.
In theory, one could extract certain words or phrases from the second letter which relate solely to the applicant. However, those words and phrases appear in the context of, and are inextricably linked to, other words and phrases which relate primarily to the care of the applicant's deceased sister and secondarily to the husband of the applicant's deceased sister. Having regard to section 13 of the FOI Act, I conclude that to provide a copy of the second letter with isolated words and phrases would be to provide a misleading record.
My findings under sections 28(1) and 28(5B) are subject to the provisions of sections 28(2), 28(5) and 28(6), which I examine below.

Section 28(2)
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 two letters 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)
Section 28(5) of the FOI Act provides that access to the 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.

In relation to paragraph (b), I do not believe that the grant of the information would be to the benefit of the third parties concerned and the applicant has not argued that this would be the case.

In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs the public interest of the right of privacy of the person to whom the information relates. In this case, the information which the two letters contain relates primarily to the applicant's deceased sister and secondarily to the husband of the applicant's deceased sister.
The applicant claims first that it is her right under freedom of information law to see the letters and secondly that the letters have been used to discredit her good name. While section 8(4) of the FOI Act requires me to disregard the applicant's reasons for the request, I may take them into account to the extent that they are potential public interest factors in favour of release. I will address each of her reasons in turn.
Whether the applicant has a right to see the records under freedom of information is the very subject of this review. I accept that there is a public interest in persons being able to exercise their rights under the FOI Act. Nonetheless, I am required to balance any such public interest against the public interest in protecting privacy rights. The FOI Act recognises this public interest 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"). It is also worth noting that the right to privacy has a Constitutional dimension, as one of the unenumerated personal rights under the Constitution. 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 says that the letters have been used to discredit her good name. This raises the question as to whether there is a public interest in her being able to defend her good name, which may override third party privacy rights.
In weighing up the public interest, I have had regard to the Supreme Court judgment in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] IESC 26, which distinguishes between private and public interests. In my view, the information which the two letters contain is inherently private, concerning as it does intimate family matters, including the health and the care of family members and the personal relationships between family members. To the extent that there is any public interest in the applicant being made aware of the contents of the second letter insofar as it relates to her good name, I find that this has been met by the letter being read out to her at the meeting on 14 August 2013.
Accordingly, I find that in the circumstances of this case, the right to privacy of the third parties whose information is at issue outweighs the public interest in granting the applicant's request.

Section 28(6)
Section 28(6) of the FOI Act provides that access to the personal information of a third party may be granted where the individual to whom the record concerned is dead and the applicant concerned is a member of a class specified in the FOI Act, 1997 (Section 28(6)) Regulations 2009 (SI 387/2009). Even if the applicant was deemed to come within one of the categories of requesters to whom records of deceased persons may be released, the fact is that while the two letters contain personal information relating primarily to the applicant's deceased sister, they also contain personal information relating to the spouse of the deceased. Accordingly, I find that section 28(6) does not disapply sections 28(1) and 28(5B) in this case.
Section 26
As I have found the record to be exempt under section 28 of the FOI Act, it is not necessary for me to consider whether the record is exempt under section 26 of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the HSE in this case on the grounds set out above.

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.

Elizabeth Dolan
Senior Investigator