Case Number: 160114

Whether the HSE was justified in its decision to refuse the applicant's request for access to a letter sent to the HSE by her sisters

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

On 12 October 2015 the applicant sought access to a copy of a letter signed and sent to the HSE by her three sisters. On 15 December 2015 the HSE refused her request under section 35 of the FOI Act on the ground that the record contains information given to the HSE in confidence. Following a request on 15 January 2016 for an internal review of the decision, the HSE affirmed its original decision on 25 February 2016. On 7 March 2016 the applicant sought a review by this Office of the HSE's decision.

I note that on 19 May 2016 Mr Christopher Flood of this Office wrote to the applicant and outlined his view that the record at issue was exempt from release under section 37 of the FOI Act because it contains personal information relating to third parties. However, the applicant has indicated that she wants a formal decision on the matter.

Accordingly, I have decided to conclude this review by way of a formal, binding decision. In concluding this review, I have had regard to the correspondence between the applicant and the HSE as outlined above, and to the correspondence between this Office and both the applicant and the HSE on the matter. I have also had regard to the content of the record at issue.

Preliminary Matters

I am required by section 22(1) of the FOI Act to give reasons for my decision, 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. Therefore, the description that I can give of the record at issue and the level of detail I can provide in relation to the reasons for my decision are limited.

As noted above, during the course of this review, this Office took the view that section 37 of the FOI Act was a more relevant exemption to consider. My jurisdiction under section 22 of the Act is to make a new decision in light of the facts and circumstances as they apply on the date of the review. Given the fact that the exemption relating to the protection of personal information is mandatory and that the release of the record at issue may affect the interests of third parties, it is appropriate, in my view, for me to consider the applicability of section 37, notwithstanding the fact that it was not relied upon by the HSE in refusing access to the record sought.

Furthermore, section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I take the view that neither the definition of a record under section 2 of the Act 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, I am not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Finally, I am mindful that under FOI, records are released without any restriction as to how they may be used and thus, such release is regarded as being, in effect, to the world at large.

Scope of Review

This review is concerned solely with the question of whether the HSE was justified in refusing access to the letter sought by the applicant.

Analysis and Findings

Section 37 - General
Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of a request if access to the record concerned would involve the disclosure of personal information relating to individuals other than the requester. Furthermore, section 37(7), also subject to other provisions of section 37, provides for the mandatory refusal of a request where access to the record at issue would, in addition to disclosing personal information relating to the requester, disclose personal information relating to individuals other than the requester, commonly known as joint personal information.

Sections 37(1) and 37(7)
The record at issue relates to the welfare and private affairs of the applicant's mother. I am satisfied that the information in the record is either personal information relating to parties other than the applicant or joint personal information relating to the applicant that is inextricably linked to personal information relating to third parties. Accordingly, I find that section 37(1) applies.

Section 37(2)
There are some circumstances, provided for at section 37(2), in which section 37(1) does not apply. Having examined the record at issue, I am satisfied that none of the circumstances identified at section 37(2) arise in this case.

Section 37(5)
Section 37(5) provides that a record which is otherwise exempt under section 37(1) may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. No evidence has been presented to this Office to suggest that the release of the withheld information would be to the benefit of the parties concerned. I find, therefore, that section 37(5)(b) does not apply.

Section 37(5)(a) - The Public Interest
On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual to whom the information relates. In determining this question, I have had regard to the obiter comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women -v- the Information Commissioner [2011] IESC 26; [2013] 1 I.R. 1; [2012] 1 I.L.R.M. 301 (the Rotunda case), wherein I note that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

The Long Title of the FOI Act reflects that there is a general public interest in openness and accountability with respect to information held by public bodies, provided that it is consistent with the right to privacy. The applicant has, in essence, argued that the record should be released to allow her to defend her good name. In line with the Rotunda judgment, in the context of determining whether to grant a request in the public interest under section 37(5)(a), the reasons given for a request may be considered only insofar as they reflect a true public interest, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public. This Office accepts 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.

On the other hand, the public interest in respecting the right to privacy is a very strong public interest and is recognised in the language of section 37 of the FOI Act. This public interest in protecting privacy rights is also reflected in the Long Title to the Act. Furthermore, the right to privacy has been recognised as an unenumerated right under the Constitution. I am also mindful that the strong protection afforded to privacy rights under FOI is consistent with Article 8 of the European Convention on Human Rights. Also, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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.

Having carefully considered the matter, I do not consider that the public interest in the release of the record sought in this instance outweighs, on balance, the significant public interest in protecting the privacy rights of the persons to whom the information relates. I find, therefore, that section 37(5)(a) does not apply. In the circumstances, I am satisfied that the HSE was justified in its decision to refuse access to the letter sought by the applicant. Given my findings regarding section 37 of the FOI Act, there is no need for me to consider the section 35 exemption in this review.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the HSE in this case.

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