Whether the HSE was justified in its decision to partially refuse a request under section 37 of the FOI Act, for access to records concerning the applicant's medical file.

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 3 July 2015, the applicant submitted a request under the FOI Act for access to records held by the HSE concerning his medical file. The HSE part granted the request on the basis of section 37 of the FOI Act. Following an application for an internal review, the HSE varied the original decision and released additional records and part granted the remaining six records on the basis of section 37 of the Act. On 14 October 2015, the applicant made an application to this Office for a review of the HSE's decision.

In conducting my review, I have had regard to the submission of the HSE and to correspondence between the applicant and the HSE. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the HSE was justified in deciding to part grant access to the records on the basis of section 37 of the FOI Act.

Findings

As a preliminary point, it should be noted that 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.

Section 37
Section 37(1) of the FOI Act provides that an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Furthermore, section 37(7) provides that an FOI body shall refuse to grant a request 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, commonly referred to as joint personal information.

The HSE confirmed that the records at issue in this review are records 23, 80, 81, 85, 88 and 92 as listed in its schedule which was forwarded to the applicant following the HSE's internal review decision. The HSE also confirmed that in its view section 37(7) applied to the records at issue.

Having reviewed the relevant records and redactions, I am satisfied that all of the withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals. Accordingly, I find that section 37(1) and/or 37(7) of the Act apply to the records at issue.

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(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 records 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 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance:

(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 am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.

Section 37(5)(a) - The Public Interest
In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

In considering the public interest test at section 37(5)(a), I have had regard to 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 (available at www.oic.ie). In the judgment, the Supreme Court 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 37(5)(a).

The applicant stated that he wanted access to all the information in the records and that "nothing [was to be] left out". It seems to me that this is, in essence, a private interest as opposed to a true public interest. Nevertheless, the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. On the other hand, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 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 information at issue in this case is of a private and personal nature. While there is a public interest in openness and transparency in the manner in which the HSE performs its functions, I am of the opinion that this has been met to some degree by the partial release of some of the records at issue. I do not consider that the public interest in the release of the redacted or refused information in this instance outweighs, on balance, the significant public interest in protecting the privacy rights of the individual/s to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that the HSE was justified in its decision to part grant access to records 23, 80, 81, 85, 88 and 92, under section 37(1) of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE in this case.

Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, 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