Case Number: 150339

Whether the HSE was justified in its decision to refuse access under sections 35(1)(a) and 37(1) of the FOI Act, to parts of records concerning the applicant's son

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 19 February 2015, the HSE received a request from the applicant under the FOI Act for access to records held by the HSE concerning his son. The HSE granted access to some of the records and refused access, in full or in part, to others, on the basis of section 35(1)(a) and section 37(1) of the Act. The applicant applied for an internal review and stated that he was doing so in his "capacity as primary carer, custodian, guardian, parent and father of [his] son". In its internal review decision of 20 April 2015, the HSE granted access to parts of additional records and affirmed the decision of the original decision maker in relation to the remaining records. On 7 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. The applicant was invited to make a submission in support of his application for review. However, while the applicant confirmed receipt of the letter from this Office, a submission was not received. 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 refuse to grant access to records and parts of records, on the basis of sections 35(1)(a) and 37(1) of the FOI Act.

Preliminary Matters

Whereas I am required by section 22(1) to give reasons for my decision, this is subject to the requirement of section 25(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 limited.

I note that under section 13(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).

I also draw attention to the extent to which it is feasible to provide access to parts of records while refusing access to the remaining parts. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 18 of the 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 18 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.

Finally, reviews carried out by this Office are de novo reviews, which means that the Commissioner considers all of the circumstances and information which exist on the date of a decision.

Findings

Section 37
The HSE refused access to a number of the records on the basis of section 35(1)(a) (Information obtained in confidence). However, given the extent of personal information that appears in the records, I consider that section 37(1) is the most appropriate exemption to examine in relation to all the records the subject of this review.

Section 37(1)
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 FOI 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 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. Having examined the records in this case, I am satisfied that they contain personal information or joint personal information relating to the mother of the applicant's son, other members of the family and persons connected to it, as well as the personal information of the applicant and his son.

It may well be the case that a considerable amount of the withheld information is generally known to the applicant. In addition, the HSE released parts of the records concerning the interaction of the applicant's son with the HSE services. However, I must consider that when a record is released under the FOI Act, this, in effect, amounts to disclosure to "the world at large", as the Act places no restrictions on the subsequent uses to which the record may be put.

The records on the files relate primarily to the applicant's son and views and feelings expressed by him. It seems to me that, having regard to the context of their creation, none of the remaining parts of records within the scope of this review contain information which is personal information relating solely to the applicant. Much of the content of the records is the personal information of third parties as outlined above. Section 37(7) of the FOI Act provides that where a record contains joint personal information, i.e. personal information about two or more individuals, third party information must, subject to the other provisions of section 37, remain protected. In this case, the personal information relating to the applicant and/or his son is intertwined with the personal information of other individuals, including family members.

The applicant's son has not yet reached the age of majority, although he is near that age. However, for the purposes of the review, he is a third party and an individual in his own right, subject to the provisions in regard to access by parents and guardians to the records of minors which I examine later in this decision. Given the context of the information, most of it is correctly described as joint personal information. While personal information can be released if the person to whom it relates consents to its disclosure, as a general rule, the release of joint personal information requires the consent of all of the individuals to whom it relates, unless section 37(5) of the FOI Act applies. I am satisfied that the records contain information which constitutes either (a) personal information relating to other persons solely, or (b) joint personal information relating both to the applicant and those other persons. Therefore, I conclude that, subject to the provisions of section 37(2) and section 37(5) which I examine below, the records are exempt from release on the basis of section 37(1) of the FOI Act.

Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. For the purposes of this review, and with reference to those circumstances, I am satisfied that, (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.

With reference to section 37(2)(b), in his letter of application to this Office, the applicant stated that his son was aware of the FOI request the applicant had made to the HSE and had given his consent to the applicant. I should say here that the applicant made no reference to any other family member or third party on the matter of consent and that I have no way of knowing whether the applicant's son is fully aware of the content of the records and how, under FOI, "personal information" of individuals is defined. Section 37(2)(b) provides that section 37(1) does not apply if consent is made in writing by the individual to whom that information relates. The section further provides that consent should be established to the satisfaction of the head of an FOI body. I note, as the HSE does in its submission, that the applicant ticked "No" on the HSE's FOI request form, when asked to indicate whether he had consent if requesting access to the personal information of another person. The fact remains that written consent has not been provided to the HSE.

In relation to 37(2)(b) and consent, this Office has considered whether, in all the circumstances of this case, it would be appropriate to seek the views, or consent to release, of the applicant's son, whose personal information is contained in the records. There are circumstances in which one might reasonably seek the views of children on a matter affecting their interests and I refer to this matter further below in my comments on section 37(8). This Office has made the judgement that, in all the circumstances of this case, it would not be appropriate to seek the views of the applicant's son as to whether or not he consents to his father having access to his personal information. There are certainly circumstances in which one might reasonably seek the views of an individual below the age of majority, on a matter affecting his interests. In this case, I have had regard to the content of the records concerned, the potential for upset to the applicant's son, the third party content, and the fact that no evidence has been provided that the child's mother has consented to his records being made available to his father. In light of these circumstances, I have decided not to seek directly to establish the views of the applicant's son.

I find that, accordingly, section 37(2)(b) does not apply. Having considered the provisions of section 37(2), I am satisfied that none of those circumstances, as listed, arise in this case to set aside the section 37(1) exemption.

Section 37(5) - the Public Interest
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 any of the individuals concerned and that section 37(5)(b) does not apply.

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 [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 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 also 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.

In the normal course, a requester's motivation in seeking records under the FOI Act must not be taken into account in deciding on the request. However, this is not necessarily the case where the public interest becomes a consideration. There is a distinction to be drawn between what constitutes a public interest as against what is a purely private interest. In some cases, these different interests overlap, however. In the present context where the applicant has not himself directly addressed the issue of the public interest, it is reasonable to infer that, while he may seek to acquire the records for his own private purposes, that private interest overlaps with the public interest in transparency and in fair procedure.

The FOI Act itself reflects a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business. Thus, in this case, I find that there is a general public interest in openness and accountability as to the manner in which the HSE carried out its functions in relation to the applicant's son. However, the circumstances of this particular case suggest that the public interest in openness, accountability and of fair procedure has been met to a large extent in the manner in which the HSE engaged with the applicant, including the extent to which it released parts of the records to him. I am not satisfied that the significant invasion of the privacy rights of the applicant's son, other family members and other third parties, which would be the consequence of releasing the records at issue here, is warranted. This is especially so in circumstances where the applicant's son confided sensitive information to the HSE professionals involved in delivering the service. Having considered the matter very carefully, I find in this case that the public interest that the request should be granted does not outweigh the public interest that the right to privacy of the individuals to whom the information relates should be upheld. I find therefore that section 37(5)(a) does not apply in this case.

Section 37(8) - Access by parents or guardians to the personal information of minors
Section 37(8) provides that, notwithstanding subsection (1), the Minister for Finance may provide by regulations for the grant of an FOI request where "the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual". The Freedom of Information Act 2014 (Section 37(8)) Regulations, 2009 (S.I. No. 387 of 2009), in turn, make provision for access by parents or guardians to personal information in relation to minors in certain circumstances.

The Regulations provide that a request for records relating to personal information about a minor shall be granted where the requester is the minor's parent or guardian and where, having regard to all the circumstances and to any guidelines drawn up and published by the Minister, access to the records would be in the minor's best interests. The issue to be decided, therefore, is whether the best interests of the applicant's son will be served by the release to the applicant of those records disclosing his son's personal information.

Guidance Notes have been published by the Minister for consideration by decision makers in applying the 2009 Regulations. The Guidance Notes specify certain factors to be taken into consideration in determining:

• whether the minor would consent to release of the material,
• whether release of the material would damage the minor in some way and
• whether the records are held in the minor's own right.

Furthermore, in its judgment in the case of McK v. The Information Commissioner[2006] 1 IR 260, the Supreme Court commented that the views of a minor nearing the age of majority on the question of the release of information affecting his privacy rights are "very relevant". In that case, the Supreme Court held that a parent is entitled to a rebuttable presumption that access to his or her child's medical information is in the best interests of the child. The Supreme Court explained: "The presumption is that the release of such medical information would best serve the interests of the minor. However, evidence may be produced that it would not serve her interests, and, in considering the circumstances, her welfare is paramount."

In the particular circumstances of this case, I have considered whether there is any remaining information in the records, not otherwise found to be exempt from release, to which the provisions of section 37(8) would apply, i.e. is there any personal information of the applicant's son, as a minor child, which could possibly be considered for release under this provision. Taking into consideration the position as regards sections 18 and 37(5) as set out above, I am satisfied that any remaining information in the records about the applicant's son is so intertwined with the personal information of the child's mother, other family members and third parties that it would be impractical to isolate it for release in any manner which would not make the information misleading.

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) of the Act applies to the records.

Having found section 37(1) to apply to all the records, I do not find it necessary to consider the decision of the HSE to exempt certain records on the basis of section 35(1)(a).

Decision

Having carried out a review under section 22(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 withheld records and I find that section 37(1) applies to them.

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