Case Number:150443

Whether the HSE was justified in its decision to redact the records of complaints made against the applicant under section 37 of the FOI Act on the basis that the redacted information comprises personal information relating to third parties

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, a solicitor, made a request on 28 October 2015 for all records of complaints made against him to the HSE concerning his handling of legal matters on behalf of a named client. On 13 November 2015 the HSE issued a decision part granting the applicant's request. It identified two records as being within the scope of the applicant's request, and partially released both records with redactions made under section 37 of the FOI Act. The applicant sought an internal review of that decision on 27 November 2015. The HSE, on 14 December 2015, issued an internal review decision in which it affirmed its decision to redact the records released to the applicant. On 17 December 2015 the applicant sought a review by this Office of the HSE's internal review decision.

During the course of the review, Mr Foley of this Office notified a certain third party of the review in accordance with the provisions of section 22(6) of the FOI Act and invited a submission on the matter. The third party made a submission on 11 May 2016. In conducting the review, I have had regard to the communications between the applicant and the HSE as set out above. I have also had regard to the correspondence between this Office and both the applicant and the HSE, including the applicant's submission of 18 January 2016, and to the third party's submission of 11 May 2016. Finally, I have had regard to the contents of the records identified by the HSE as coming within the scope of the applicant's request.

Scope of Review

This review is concerned solely with the question of whether the HSE was justified in its decision to redact records of complaints against the applicant under section 37 of the FOI Act on the basis that the redactions comprise personal information relating to third parties.

Preliminary Matters

I should explain at the outset that as records are released under the FOI Act without any restriction as to how they may be used, such release is essentially regarded as release to the world at large. This is of particular relevance where the question of the release of personal information relating to third parties is at issue.

I should also draw attention to section 18 of the FOI Act which 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 modified 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 in isolation. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Finally, while I note that the applicant outlined his dissatisfaction with the manner in which the HSE dealt with the complaint made against him, it is important to note that this Office's remit does not extend to examining the manner in which an FOI body performs its functions generally, or to investigating complaints against an FOI body. The scope of this review is confined to the matter identified above

Analysis and Findings

The records at issue in this case comprise a three page document entitled "Referral to Senior Case Worker (Senior Social Worker) for the Protection of Older People" and a three page email to the HSE concerning the applicant. The HSE redacted certain information from the two records under section 37(1) of the FOI Act. That section provides that a public body shall refuse to grant a request where access to the record sought would involve the disclosure of personal information relating to a third party. For the purposes of the Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by an FOI body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition.

With one exception, I am satisfied that all of the redacted information comprises personal information relating to third parties. The exception is the identity and address of the agency that made a referral to the HSE as contained on page two under the heading "Details of person making the referral". For the sake of completeness, I should add that I do not consider the identity of the agency to be excluded from release under section 42(m)(i). That section provides that the Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal, or lead to the revelation of, the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body. I do not consider section 42(m)(i) to apply as the HSE has not satisfied me that the details of the agency having made a referral was given in confidence. In any event, it is clear from the information contained in the first record that has already been released to the applicant that the agency in question made the referral at issue to the HSE.

As all of the remaining redacted information comprises personal information relating to third parties, I am satisfied that section 37(1) applies to that information.

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. Furthermore, 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 to whom the information relates and I find, therefore, that section 37(5)(b) does not apply. In relation to paragraph (a), the question I must consider is whether the public interest in granting access to the redacted information 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 (the Rotunda judgment) (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).

In his submission to this Office, the applicant stated that he is seeking access to the records of complaints made in relation to for a number of reasons, including;
to demonstrate his adherence to the code of ethics associated with his profession
to vindicate his right to a good name
in recognition of the fiduciary relationship between solicitor and client
to ensure fair procedures
to vindicate his constitutional rights
to vindicate his rights under the European Convention of Human Rights Act 2003
to vindicate his right to a livelihood, and not have this interfered with unnecessarily
to promote openness, transparency and accountability in public bodies in relation to the performance of their functions, and,
on the basis that the complainant in this instance acted maliciously, in bad faith, and was acting frivolously and vexatiously in making this complaint

I have considered the points raised above in making my decision in this review, in so far as they represent true public interest factors in support of release. The Long Title of the FOI Act reflects that there is a general public interest in openness and transparency with respect to information held by public bodies, provided that it is consistent with the right to privacy. This Office has also previously acknowledged that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. The public interest in openness and accountability also extends to the related public interest considerations such as promoting the rights of individuals under the European Convention on Human Rights.

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 that has been redacted from the records at issue is of a private nature relating to the personal circumstances of third parties. The applicant, in his submission to this Office, stated that he was seeking the information contained in the complaints which related to him in order to protect the interests which I have set out above, and that he was not seeking the remainder of the personal information contained in the records. It seems to me that the public interest factors identified by the applicant have been served, to some extent, by the partial release of the two records at issue. The information released clearly indicates the nature of the complaints made. On the other hand, the redacted information is of a sensitive personal nature relating to third parties. In my view, the public interest in releasing such information does not outweigh, on balance, the public interest in protecting the strong privacy rights of the individuals concerned. I find, therefore, that section 37(5)(a) does not apply to the redactions at issue.

Accordingly, I find that the HSE was justified in its decision to refuse access to the information contained in the redactions made to the records at issue under section 37(1) of the FOI Act, apart from the specific redaction I have identified above to which section 37(1) does not, in my view, apply.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2015, I hereby vary the decision of the HSE in this case. I direct the release of the identity of the agency that made the referral to the HSE as contained in the words following the words "Agency/Address" on page two of the first record.

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.

Stephen Rafferty,
Senior Investigator