Case Number: 160375

Whether the HSA was justified in refusing to grant access in full to records relating to a specified accident involving a third party

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

By letter dated 14 January 2016, the applicant submitted a request to the HSA for "a copy of the special accident report" relating to a specified accident involving a third party. The HSA issued its decision on 10 February 2016, granting access to two records, subject to redactions of certain information under sections 32, 35 and 37 of the FOI Act. The records in question comprise a "Case Summary" report and a "Report of Inspection". On 25 February 2016, the applicant sought an internal review of the HSA's decision. The HSA issued its internal review decision on 16 March 2016, in which it affirmed the original decision. The applicant sought a review by this Office of the HSA's decision by way of letter dated 9 September 2016.

In conducting this review I have had regard to the HSA's communications with the applicant as set out above and to the communications between this Office and both the applicant and the HSA on the matter.

Scope of Review

In his request for internal review, the applicant sought to expand his request to include access to witness statements. The HSA has stated, and I accept, that witness statements form no part of the summary report. In correspondence with this Office, the applicant also referred to other records, referring to a "requisition document or paperwork" and suggesting that this Office should have regard to the "entire file". However, it is clear that the applicant's request was limited to a copy of the HSA's report in relation to the accident. This Office is not in a position consider the question of access to records which did not form part of the original request.

Accordingly, the only records at issue in this review are a the Case Summary, which the HSA states is also known as a Summary Report, and the Report of Inspection. This review is therefore concerned solely with the question of whether the HSA was justified under sections 32, 35 and 37 of the FOI Act in its decision to refuse access to parts of the two records on the basis that their release would prejudice or impair the investigation of offences or the administration of law, that they contain information provided to it in confidence, and that they contain the personal information of third parties.

Preliminary Matters
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 records is 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

While the HSA has cited a number of exemptions in support of its decision to redact certain information from the records, I consider section 37 to be of most relevance in this case. 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.

Section 2 of the FOI Act defines personal information, for the purposes of section 37 as including information relating to the medical history of an individual and information relating to the employment or employment history of an individual. Having examined the contents of the records at issue, I am satisfied that they relate to a workplace accident involving a third party, as well as information relating to other individuals who had an involvement in both the accident and subsequent investigation. As such, I am satisfied that the records consist of the personal information of these third parties. None of the information in the records contain personal information relating to the applicant. Accordingly I find that section 37(1) of the Act applies to the records at issue.

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 records does not relate 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) 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 concerned and that section 37(5)(b) does not apply. In relation to paragraph (a), 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).

The applicant stated that that he wishes to access the records at issue so as to understand the HSA's approach to its investigation of the accident in question, and in particular to understand why no prosecution resulted from that investigation. It appears that at the time of the accident, the applicant was a colleague of the third parties referenced in the records. The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. In this regard, I note that the HSA has already released a significant amount of information to the applicant.

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.

When a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put. While there is a public interest in openness and transparency in the manner in which the HSA performed its functions in relation to the accident in question, the question before me is whether this is sufficient, on balance, to outweigh the significant public interest in protecting the privacy rights of the individuals to whom that information relates. In my view, it is not. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that the HSA was justified in its decision to refuse access to parts of the records at issue under section 37(1) of the Act. Given my finding that section 37(1) applies to the redacted portions of the records at issue, it is not necessary for me to consider the application of sections 32 and 35 of the FOI Act in this case.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the HSA's decision to grant only partial 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