Case Number: 160223

Whether the HSE was justified in its decision to refuse access to certain information contained in a report concerning the welfare of the applicant's son written by a named social worker

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 made a request to the HSE on 27 January 2016 for a full, unabridged copy of a report prepared by a named social worker into his son's welfare. On 24 March 2016, the HSE refused the request under section 32(1)(b) of the FOI Act. Following the applicant's request for an internal review, the HSE varied its decision. It released a redacted version of the report to the applicant, relying on sections 37 (personal information) and 35 (information obtained in confidence) of the FOI Act to withhold certain information. The applicant sought a review by this Office of that decision on 17 May 2016.

I have now decided to conclude this review by way of a formal, binding decision. In conducting the review I have had regard to the full contents of the record at issue. I have also had regard to correspondence between the applicant and the HSE on the matter, and between this Office and both the HSE and the applicant in relation to this review.

Preliminary Matters
Before I address the substantive issues arising, I would like to make a number of comments.

Firstly, I wish to point out that while I am required by section 22(1) of the Act to give reasons for my decision, I am also 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 redacted information at issue, and the level of detail I can provide in relation to the reasons for my decision, are limited.

Secondly, 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). 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 wish to comment on the HSE's handling of the applicant's request. The HSE did not provide adequate explanations of the reasons for refusing to grant the applicant's request in full, either in its original decision or in its internal review decision, as is required under the Act. Therefore, in accordance with section 23 of the Act, this Office instructed the HSE to provide a fuller statement of reasons of the inadequacy of its decisions.

The HSE subsequently provided this Office with a detailed response to that letter, along with a detailed submission for the purposes of the review. It also wrote to the applicant and in doing so, mistakenly suggested that the submission had also been released to the applicant. This was not the case. However, following further discussions with this Office, it wrote again to the applicant on 12 September 2016 setting out comprehensive reasons for the decisions taken on his request.

As a result of issues raised during this review, the HSE informed this Office that it would write to each Hospital Group CEO and Community Healthcare Organisation Chief Officer in order to highlight the importance of ensuring that FOI decision makers provide adequate reasons for decisions and that the public interest test is considered in each decision taken. I welcome this commitment from the HSE. I would also urge all decision makers to avail of the significant support resources available on the website of the Central Policy Unit of the Department of Public Expenditure and Reform, www.foi.gov.ie, which can facilitate the efficient processing of FOI requests. The resources available include a detailed Code of Practice for public bodies and sample letters for use when processing requests.

Scope of Review

This review is concerned solely with the question of whether the HSE was justified in its decision to refuse access to certain information contained in the report relating to the welfare of the applicant's son.

Analysis and Findings

The HSE redacted certain information from the report under sections 35 and 37 of the Act. I will address the applicability of section 37 in the first instance as I believe it to be of most relevance in this case.

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 of 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.

For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or (b) is held by a public body on the understanding that it would be treated by it as confidential. The Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including:

"(i) information relating to the educational, medical, psychiatric or psychological history of the individual ... (vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual ... (viii) information relating to ... any disability of ... the individual ... (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual [and] (xiv) the views or opinions of another person about the individual..."

Sections 37(1) and 37(7)
The record at issue contains details of interviews taken with the applicant and a number of other family members relating to inherently sensitive and private affairs. I have carefully examined the full contents of the record. Having regard to the definition of personal information set out above, I am satisfied that the withheld information is either personal information relating to parties other than the applicant or joint personal information relating to the applicant and/or his son that is inextricably linked to personal information relating to other parties. I have also had regard to the provisions of section 18, detailed above. In the circumstances, 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 full contents of the record at issue, and having regard to the statements of both the applicant and the HSE in this matter, 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, I must consider 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. There is a distinction to be made between a request made by a private individual for a private purpose and a request made in the public interest. 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.

In this case the applicant has expressed what appears to be a private interest in accessing the withheld information. He informed this Office that he had viewed the full contents of the report previously with two named social workers and wished to obtain a full copy for his family's purposes. He contended that the withheld information should be released to assist him in legal proceedings he is taking to protect himself and his son. 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. An applicant's private interest in certain records cannot be construed as a public interest based on the applicant's own motives for seeking access to the records.

Nevertheless, 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 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. This public interest in protecting privacy rights is also reflected 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. Moreover, the right to privacy has been recognised as an unenumerated right under the Constitution. The strong protection afforded to privacy rights under FOI is also consistent with Article 8 of the European Convention on Human Rights. Furthermore, 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.

It is important to note that under FOI, records are released without any restriction as to how they may be used. Thus, such release is regarded as being, in effect, to the world at large because the FOI Act places no restrictions on the subsequent uses to which the records may be put. Accordingly, the question I must consider is whether the public interest in granting access to the report in full outweighs, on balance, the privacy rights of the third parties other than the applicant and/or his son. In my view, it does not. In reaching this conclusion, I am also mindful of the fact that the public interest in promoting transparency and accountability has been met to some extent by the release of the redacted version of the record in question.

I find, therefore, that section 37(5)(a) does not apply. Accordingly, I find that the HSE was justified in its decision to refuse access to the withheld information under section 37 of the Act. Given my findings regarding section 37, I do not need to consider the applicability of section 35 to the information 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 certain information contained in the report relating to the welfare of the applicant's son 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