Whether the HSE was justified in its decision to refuse access to letters written by the applicant's daughter concerning her to two named doctors

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

Background

The applicant submitted a request to the HSE on 4 September 2015 for copies of letters written by the applicant's daughter concerning her to two named doctors. In response to that request, the HSE issued three separate decisions. The net effect of the three separate decisions was that 3 records, comprising 15 pages, were identified as coming within the scope of the applicant's request. Apart from the release of an annotation on one of the records, access was refused to the three records.

The applicant sought an internal review of the decisions on 23 October 2015. The HSE issued two separate internal review decisions in respect of the applicant's request on 9 November 2015, affirming the decisions to refuse access to the records sought. The applicant sought a review by this Office of the HSE's decision on 11 November 2015.

In conducting this review I have had regard to the correspondence between the applicant and the HSE, and to correspondence between this Office and both the HSE and the applicant.

Scope of Review

This review is solely concerned with whether the HSE was justified in refusing access to the three records identified by the HSE as coming within the scope of the applicant's request.

Preliminary Matters
Before I consider the substantive matter of the HSE's refusal to grant access to the records at issue, I feel it necessary to comment upon the manner in which the HSE processed the applicant's request. The applicant correctly submitted her request to a single organisation, namely the HSE. While I fully accept that the HSE is significant in size and that the different functional areas may be best placed to make informed decision on records relating to their functions, I see no reason why the HSE could not have coordinated the responses of the various functional areas and issued a single composite response in this case, particularly given that the same records were at issue in each area and that only three records were identified as coming within the scope of the request. Indeed, one of the decision makers issued two separate decisions based on where the records were held. It was not the case, for example, that large files containing altogether different records were held by the various areas.

The HSE did not appear to have any regard to the possibility that issuing three separate response could given rise to potential confusion on the part of the applicant. Indeed, when the applicant applied for an internal review of the refusal of access, the HSE felt it necessary to contact her again to ask her which decision or decisions she wished to have reviewed. Similar issues of uncoordinated responses have arisen in other unrelated reviews and I intend to raise this general matter with the HSE to determine how this matter might be addressed in the future.

In relation to this review, I should explain 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.

Furthermore, it should be noted 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. This is of particular relevance where the question of the release of information relating to third parties is at issue.

Analysis and Findings

The HSE refused access to the three letters under sections 35 and 37 of the FOI Act, on the basis that the records contain information obtained in confidence and the personal information of third parties. In my view, section 37 is of most relevance in this case.

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 the 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.

Having examined the records, I am satisfied that all of the withheld information is either personal information relating to an individual or 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) applies 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. Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) or section 37(7) 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. 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 third parties 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.gov.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 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 an extremely private and personal nature relating not only to the applicant but also to identifiable third parties. In the circumstances, it is worth recalling that release under FOI is regarded, in effect, as release to the world at large. While there is a public interest in openness and transparency in the manner in which the HSE performs its functions, I do not consider that in this instance, the public interest in the release of the joint personal information or the personal information relating solely to third parties outweighs, on balance, the significant public interest in protecting the privacy rights of the third parties to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Having found that the records at issue are exempt from release under section 37 of the FOI Act, there is no need for me to consider the applicability of section 35 to the records at issue.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse access to the records at issue under section 37 of the FOI Act.

Right of 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.

Stephen Rafferty
Senior Investigator