Case Number: 150407

Whether the Service was justified in its decision to refuse access to records concerning the applicant's son under sections 30(1)(a) and 37(1) 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

The applicant is the father and a legal guardian of a five year old boy. In 2012, the applicant's son was assessed and referred to the Service for speech and language therapy, occupational therapy, medical services, physiotherapy and psychology services. On 25 August 2015, the applicant made an FOI request to the Service for all records it holds relating to his son including:

1. His original application or referral (2012-2013),
2. All files and records including but not limited to his annual reviews and progress reports (2012-2015),
3. Notes and progress reports held or made by all staff including two named members of staff (2012 -2015),
4. Records held or made by a named member of staff and other staff including his re-assessment (January 2015 to July 2015), questionnaires, standardised tests and results,
5. All correspondence to both parents (2012-2015).

On 9 October 2015, the Service decided to grant the applicant's request in part. On 12 October 2015, the applicant requested an internal review of this decision. On 3 November 2015, the Service wrote to the applicant and stated that, following further searches, it had located additional records. On 19 November 2015, the Service upheld its original decision; it also granted full access to all but one of the additional records located. On 23 November 2015, the applicant applied to this Office for a review of the Service's decision. Both the applicant and the Service made submissions in the course of this review.

In July 2015, the Service carried out a review assessment on the applicant's son. Four tests were apparently used in the re-assessment. In its original and internal review decisions, the Service refused to release each of the four test booklets and results. It did release the assessment report compiled using these tests. Following communications with this Office, and in an effort to settle the case, the Service offered the applicant an opportunity to inspect the test booklets and results as an alternative to providing physical copies. It stated that the booklets are copyright protected and it was prevented by section 17(2)(b)(ii) of the Act from providing physical copies to the applicant. This Office informed the applicant of the offer to inspect these records. The applicant confirmed that he was not agreeable to inspection, that he required actual copies, and that he wished to proceed with his application for a review of the Service's decision.
I have decided to conclude this review by issuing a formal binding decision as the applicant requires this. In conducting this review, I have had regard to correspondence between the applicant and the Service, to correspondence between the Service and this Office, to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the FOI Act.

Scope of Review

The scope of this review is confined to whether the Service was justified in deciding that:

- Section 15(1)(a) of the Act applies to further records which the applicant claims are held;
- Section 30(1)(a) of the Act applies to the four test booklets and results;
- Section 37(1) of the Act applies to the information withheld from Schedule One records: 58, 65, 66, 67, 69, 70, 71, 72, 73, 78, 79, 81, 85, 86, 90, 98 100, 102; and Schedule Two: record 17.

Preliminary Matters

At the outset, it is relevant to note a number of preliminary matters. Section 13(4) of the FOI Act provides that, 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).

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.

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified. Therefore, in this case, the onus is on the Service to justify its decision.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken 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 material that I can refer to in the analysis is limited.

Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Analysis and Findings

Section 15(1)(a) - whether additional records exist or can be found

In his submissions to this Office, the applicant argues that he was not given all social work records compiled by a certain employee of the service which relate to his son, nor was he given all psychological questionnaires, standardised test results and notes held by another employee. The Service argues that it cannot locate any further records. It is clear, therefore, that section 15(1)(a) of the Act is relevant in this review.

Section 15(1)(a) provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases the Commissioner's role is to review the decision of the public body and to decide whether the decision than no further records exist is justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of his role in such cases was approved by Quirke J. in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner[2002 No. 18 M.C.A.] (available on this Office's website at www.oic.ie).

In its submissions to this Office, the Service states that on receipt of the applicant's request, all relevant staff members were informed of the specifics of the FOI request and were requested to submit all records they held in relation to the applicant's son. According to the Service, following the applicant's request for an internal review, its FOI Officer requested all relevant members of staff, including those named in the request, to conduct a further search and ten additional records were located. The Service has provided this Office with emails from heads of the relevant Departments confirming to the FOI Officer that no further records are held by these Departments in relation to the applicant's son. The Service states that it retains records on service users on an electronic system known as the Electronic Records Management System (ECRS) from which it was able to access the majority of records pertinent to this FOI request. It also provided this Office with a copy of its record management policy which refers to a record management destruction form which must be completed if a record is destroyed. The Service states that there is no evidence that any records on the applicant's son have been destroyed and it argues that the applicant has been provided with all records held by the Service including those held by the two named staff members.

The applicant asserts that further emails and notes are held by staff members but has not provided any further information on the nature of these. I am satisfied, having regard to the information and documentary evidence provided by the Service, that reasonable steps to search for records have been taken. I find, therefore, that section 15(1)(a) of the Act applies to the applicant's request.

Section 30(1)(a) - prejudice to effectiveness of tests etc.

Section 30(1) provides for the refusal of access if access to the record concerned could, in the opinion of the head, reasonably be expected to - "(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof".

Section 30(1)(a) is what is known as a harm-based provision. Where an FOI body relies on section 30(1)(a) it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur.

I am satisfied from the content and context of the test records that they comprise tests or examinations conducted by the Service for diagnostic purposes and disclose procedures and methods employed for the conduct of such tests. In its submissions, the Service says that the tests which formed part of its assessment consisted of a large number of questions and took many hours for the clinicians to complete with the child's parents. It accepts that while some of the test booklets may be purchased online in certain circumstances, but says that these are "useless and meaningless" without having access to the test manuals and algorithms which are available only to psychologists who have specific training and experience. It says that the test materials and notes recorded on them could be misinterpreted by persons who do not have the training and experience to properly understand and interpret the data.

The Service argues that the release of the test materials could lead to those particular tests not being used for future assessments (e.g. "second opinions" ) because prior knowledge of the tests damages their reliability in that the results might not present a true reflection of the ability of the person to whom the test relates. The compromising of the tests in this way could, according to the Service, limit the assessment tools available to the applicant's son and other individuals who might require future review assessments. The Service states that it is vital to the on-going use of these internationally used test instruments that their detailed content is not released into the public domain. It makes reference to the policy of the Psychological Society of Ireland that test materials be kept securely and its statement that "release of test materials to members of the public under Freedom of Information is not advised as this may impair the usefulness of the test".

The applicant disputes the claim that his having access to the records would affect future tests. He says that for this to happen, he would have to contact everyone undergoing the tests and inform them of the content. In this regard, I must bear in mind that there are no restrictions on the use to which records released to an individual under FOI may be put and release to an individual applicant must be taken as, effectively, "release to the world at large". I note also that the Service says that it is possible that the same tests might be applied to the applicant's son in future assessments.

In relation to the reasonableness of the Service's expectations that the harm identified could occur, the Commissioner does not have to be satisfied that such an outcome will definitely occur. The test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable. It is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations. In my view, the submissions of the Service are sufficient to demonstrate the link between granting access to the records concerned and a reasonable expectation that the effectiveness of the specialised tests or the procedures or methods employed for their conduct would be prejudiced.

The Public Interest - section 30(2)

The exemption provided for at section 30(1) does not apply where, on balance, the public interest would be better served by granting the request than by refusing it. I must, therefore, go on to consider the public interest test under section 30(2).

It is clear that the purpose of the tests is to apply a standardised assessment process using the tools deemed most appropriate to the needs of the individual being assessed. While the applicant disagrees with the particular diagnosis resulting from the tests, this does not, in my view, undermine the objectives of ensuring, as far as possible, that assessments carried out by trained professionals involved are fair and consistent. I consider that it is in the public interest that the effectiveness of test materials is not compromised and that they can be used by the Service and others in future assessments. I examine below the issue of the public interest versus the private interest in relation to access to records in the context of section 37. I am satisfied that the public interest in openness, transparency, and accountability in the delivery of services to the applicant's son is served to a large extent by the material already released, including the release of copies of psychological assessments. I find that the public interest would not, on balance, be better served by the granting of access to copies of the tests in this case.

Section 17- form of access

Section 17(2)(b)(ii) is a mandatory provision which provides:

"Where a head decides to grant an FOI request and the request is for access in a particular form or manner to a record, such access shall be given in that form or manner unless the head concerned is satisfied...(b) that the giving of access in the form or manner requested would...(ii) involve an infringement of copyright (other than copyright owned by the State, The Government or the FOI body concerned)..."

The applicant submits that the test booklets used in the assessment of his son can be purchased online and he provided a number of website addresses in this regard. He says that the booklets are in the public domain and that the Service did not refer to the records being copyright protected in its original or internal review decisions. The Service states that it is indicated on each of the four tests booklets that they are copyright protected; it says that it is prevented by this copyright protection from reproducing, replicating or transmitting these booklets.

Strictly speaking, it is not necessary for me to make a finding on the copyright issue given my finding above that the test records are exempt under section 30(1)(a). However, it is my understanding that availability of the booklets for purchase does not affect copyright status and it seems to me that, on their face, the records themselves indicate that the tests are copyrighted by a party other than the State, the Government or the Service.

Section 37 personal information

Section 37(1) and (7)
The Service withheld information from the following records on the basis that the information withheld is exempt under sections 37(1) and/or 37(7) of the Act: Schedule One records: 58, 65, 66, 67, 69, 70, 71, 72, 73, 78, 79, 81, 85, 86, 90, 98, 100 and 102; Schedule Two record: 17. 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. 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.

Section 2 of the Act defines personal information as information about an identifiable individual that, either - (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to list fourteen categories of personal information including information relating to the educational, medical, psychiatric or psychological history of the individual.

Section 2 states that the definition of personal information does not include the name of the individual in a case where the individual holds or held a position as a member of staff of an FOI Body, or any other position, remunerated from public funds. The information withheld from records 58 and 69 includes the name of a Doctor and the telephone number of a medical centre. The Doctor referred to in record 58 is described as a "Senior Medical Officer with the HSE". The medical centre referred to in record 69 is operated by the Service. Having regard to the definition of personal information provided for in section 2, I find that this information is not exempt under section 37(1) of the Act and should be released.

The information withheld from records 65, 66, 67, 71, 72, 73, 78, 79, 81, 85, 86, 90, 98, 100, 102 and record 17 schedule 2 largely consists of sensitive information provided by a person other than the applicant and his son, to community nursing staff, social work staff or psychology staff. I am satisfied that none of the withheld parts contain information which is personal information relating solely to the applicant. The information withheld is either the personal information of third parties or personal information relating to the applicant and/or his son which is intertwined with the personal information of third parties. I find that section 37(1) and/or section 37(7) of the Act applies to the information withheld from the above mentioned records.

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.

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 do not consider that the release of the information at issue would benefit the third parties to whom it relates, as envisaged by section 37(5)(b) of the Act.

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

In relation to 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, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, privacy rights will be set aside only where the public interest served by granting the request is sufficiently strong to outweigh the public interest in protecting privacy.

In submissions to this Office, the applicant states that "having a copy of these tests will prove my son was deliberately mis-diagnosed and allow me to pursue my multiple complaints against this organisation and furthermore I am entitled to them as they are a medical record regarding my child." The information withheld under section 37 does not directly concern the assessment of the applicant's son. While there is a public interest in openness and transparency in the manner in which the Service performs its functions, I am of the opinion that this has been met to a large degree by the release of the majority of the records at issue. I do not consider that the public interest in the release of withheld information in this instance outweighs, on balance, the significant public interest in protecting the privacy rights of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Section 37(8) - Access to the personal information of minors

Section 37(8)(a) provides that, notwithstanding subsection (1), the Minister for Finance may provide by regulations for the grant of access 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. Clearly, the Service considered that the applicant was entitled to the bulk of the information about his child.

The FOI Act 1997 (Section 28(6)) Regulations, 2009 (S.I. No. 387 of 2009) were continued in force by section 54(2) and Schedule 5 of the FOI Act 2014. The Regulations make provision for access to personal information of minors and deceased persons in certain circumstances e.g. where access would be in the child's best interests. 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 under sections 30 or 37, 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 other individuals that it would be impractical to isolate it for release in any manner which would not make the information misleading. Accordingly, I see no need to consider this in further detail.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Service. I affirm its decision in relation to records withheld under sections 15(1)(a) and 30(1)(a) of the Act. I affirm its decision in relation to records partially withheld under section 37(1) and 37(7)/ with the exception of certain information (as identified above) withheld from records 58 and 69 which I direct be released to the applicant.

 

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

 

 

Elizabeth Dolan
Senior Investigator