Case Number: 160318

Whether the HSE was justified, under sections 35(1)(a) and 37 of the FOI Act, in refusing to grant access to a letter relating to the applicant's daughter on the basis that it contain personal information relating to her which was given to the HSE in confidence

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 process by which this application came before the Office of the Information Commissioner was somewhat protracted. Unfortunately, this was due, in part, to errors made by both this Office and the HSE in their handling of the matter. In a letter which the HSE received on 3 November 2015, the applicant submitted a request to the HSE for access to a letter it received from a named service provider that is held on his daughter's file. The applicant's daughter is in receipt of home support that is provided by a private home support agency under contract from the HSE.

On 11 January 2016, the HSE notified the third party service provider of the request and of the fact that it was considering release of the record sought in the public interest. It invited the third party to make a submission on the matter. Section 38 of the FOI Act applies to cases where, at some stage in the decision making process, the public body has formed the view that the record(s) in question qualify for exemptions under one or more of the relevant exemptions in the FOI Act (i.e. sections 35, 36 and 37 - relating to information that is confidential, commercially sensitive, or personal information relating to third parties, respectively) but that the record(s) should be released in the public interest.

Where section 38 applies, the public body is required to notify an affected third party before making a final decision on whether or not the exemption(s), otherwise found to apply, should be overridden in the public interest. The requester, or an affected third party, on receiving notice of the final decision of the public body, may apply directly for a review of that decision to this Office.

It is clear, therefore, that the HSE considered the applicant's request to be one to which section 38 applies. However, it is important to note that under section 38(2), the notification to the third party must issue within two weeks of receipt of the request, or within four weeks if, under section 38(3), the body has extended that period as a result of the number of records or third parties involved. The HSE failed to comply with those statutory time-frames.

On 4 February 2016, the HSE issued its decision to the applicant, wherein it refused access to the record sought under section 35(1)(a) of the FOI Act. As it had treated the request as a request to which section 38 applies, it correctly informed the applicant of his right to appeal that decision directly to this Office. On 18 February 2016, the applicant sought a review of that decision by this Office. Unfortunately, this Office subsequently advised the HSE that it should have afforded the applicant an opportunity to apply for an internal review of the original decision. The HSE did not realise that the advice given was incorrect and informed the applicant of his right to apply for an internal review on 31 March 2016.

Following further exchanges of correspondence, the HSE eventually issued an internal review decision on 19 July 2016, affirming the original decision to refuse access to the record sought and the applicant subsequently sought a review by this Office of that decision.

It is very unfortunate that this matter has been delayed as a result of incorrect advice given by this Office and any inconvenience caused to the applicant is regretted. While the procedure by which the application for review has come before this Office was clearly flawed, it seems to me that the most appropriate course of action, to avoid any further undue delay, is complete the review by issuing a binding decision on the matter.

In conducting this review I have had regard to the communications between the applicant and the HSE, and to the communications between this Office and both the applicant and the HSE on the matter. I have also had regard to the contents of the record sought by the applicant, a copy of which was provided to this Office for the purpose of the review.

 

Scope of Review

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

 

Preliminary Matter

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the record is limited. It also means that the extent to which I can give reasons for my decision is necessarily limited.

I should also explain that section 13 of the FOI Act provides that in deciding whether to grant or refuse a request any reason that the requester gives for the request must generally be disregarded, except insofar as such reasons are relevant to the consideration of the public interest provisions of the Act.

 

Analysis and Findings

The applicant sought access to a letter from a named service provider, which he stated may be found on his daughter's file. The applicant's adult daughter (Ms. Y) has an intellectual disability and lives with the applicant, who is her main carer. The third party is a company that provides home care assistance on behalf of the HSE. The letter at issue in this review contains details of concerns raised by staff members of the third party in relation to Ms. Y's care. The HSE argued that the record is exempt from release under sections 35 and 37 of the FOI Act. In my view, section 37 is of most relevance and I will address that exemption in the first instance.

 

Section 37
Section 37(1) provides that a public 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 a public 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.

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 FOI 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" and "(xii) the name of the individual where it appears with other personal information relating to the individual or where disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual".

Having examined the record at issue, I am satisfied that it contains personal information relating to the applicant that it inextricably linked with personal information relating to Ms. Y, i.e. it contains joint personal information relating to the applicant and Ms. Y. I find, therefore, that section 37(1) of the Act applies to the record as release of the record would involve the disclosure of personal information relating to an individual other than the applicant.

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. That is to say, (a) the information contained in the record does not relate solely to the applicant; (b) Ms. Y has 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) 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 public interest that the right to privacy of the individual to whom the information relates should be upheld, or

(b) the grant of the request would benefit the individual aforesaid

In forming my view on 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 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, 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).

In this case the applicant stated that he sought access to the letter for the purpose of ascertaining whether it contained accusations against him and for the purpose of clearing his name. It therefore seems to me that what is at issue in this case is, in essence, a private interest as opposed to a true public interest. Nevertheless, 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.

It seems to me that the public interest in enhancing the transparency and accountability of the HSE in how it dealt with the matters arising in the record at issue has been served to some extent, given that the HSE raised the matters set out in the record with the applicant in the course of the performance of its functions. The question I must consider is whether the public interest in further enhancing the transparency and accountability of the HSE by releasing the record outweighs, on balance, the significant public interest in protecting the privacy rights of Ms. Y. Given the very sensitive nature of the information contained within the record, I find that it does not. I find, therefore, that section 37(5)(a) does not apply.

Section 37(5)(b) provides that the personal information of third parties may be released in circumstances where such release would benefit the individual. The applicant's submissions make clear that he seeks access to the records for his own purposes, and provide no basis upon which to conclude that release of the records would benefit Ms. Y, while the HSE also made submissions on this point. I am satisfied that the release of the records would not benefit Ms. Y and I find that section 37(5)(b) does not apply.

Section 37(8) provides that, notwithstanding section 37(1), the Minister for Public Expenditure and Reform may provide by regulations for the grant of an FOI request 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". The Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. No. 218 of 2016) make provision for access by parents or guardians to personal information in relation to persons in certain circumstances.

The Regulations provide for a right of access by parents or guardians to personal information of individuals who, at the time of the request, have, or are subject to, a psychiatric condition, mental incapacity or severe physical disability, the incidence and nature of which are certified by a registered medical practitioner, and by reason of that condition, incapacity or disability, are incapable of exercising their rights under the FOI Act. For a right of access to apply, the FOI body must be of the view that, having regard to all the circumstances, access to the individual's personal information would be in that individual's best interests.

It is not disputed by either party that Ms. Y's medical condition is such that she is not capable of exercising her rights under the FOI Act. The question I must consider, therefore, is whether, having regard to all the circumstances, the release of the record sought would be in Ms. Y's best interests.

The applicant, in his submission made clear that his reason for seeking access to the record was in the interests of addressing allegations he believes to be contained in the letter. While I understand that the applicant has concerns in this regard, it is nevertheless clear to me that he anticipates that the release of the record will be for his personal benefit, rather than in Ms. Y's best interests.

I have also had regard to the submissions of the HSE on this point. While section 25(3) prevents me from setting out my reasoning, I am not satisfied that the release of the record would be in Ms. Y's best interests. I therefore find that the requirements of the regulations are not satisfied and that a right of access under the 2016 Regulations does not exist.

Accordingly, I find that the HSE was justified in its decision to refuse access to the record at issue under section 37(1) of the Act. Having so found, it is not necessary for me to consider whether the letter is also exempt under section 35(1)(a) of the FOI Act.

 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the HSE's decision to refuse access to the record at issue.

 

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