Case Number: 160349

Whether the HSE was justified in its decision to refuse access to records/parts of records concerning the applicant on the basis of section 37(1) and section 35(1)(a) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 25 May 2016, the applicant made an FOI request to the HSE seeking access to her file held by [a named] Mental Health Service. The applicant sought access to records dating from March 2015 to the date of her request. On 12 July 2016, the HSE issued a decision partially granting the request. On 26 July 2016, the applicant requested an internal review of the HSE's decision. On 19 August 2016, the HSE varied its original decision and released additional information to the applicant. On 24 August 2016, the applicant applied to this Office for a review of the HSE's decision.

Submissions were requested from the HSE and the applicant. In her submissions, the applicant stated that the HSE ought to hold additional records that are relevant to her request. In its submissions, the HSE stated that it had located additional records and it granted the applicant partial access to three files of additional records. The HSE also stated that, having carried out a further review of the applicant's file, it had decided to release the information withheld in relation to the applicant's minor children. It provided the applicant with 25 pages of records.

I have decided to conclude this review by way of a formal binding decision. In conducting my review, I have had regard to correspondence between the HSE and the applicant, to correspondence between HSE and this Office, to correspondence between the applicant and this Office, to the records at issue and to the provisions of the FOI Act.

Scope of the Review

Following the applicant's request, the HSE identified two files of records; file one contains 158 records and file two contains 294 records. The HSE refused access to records/parts of records on the basis of sections 35(1)(a) and 37(1) of the FOI Act as identified on the schedule provided to the applicant.

In the course of this review the HSE located three additional files of records (A, B and C). File A is described as an extension of file two, it contains records 295 to 366, file B contains records 1 - 27 and file C contains records 1 - 28. The HSE refused access to records/parts of records in files A, B and C on the basis of sections 35(1)(a) and 37(1) of the FOI Act. I note that the records contained in file A were created after the date of the applicant's request and therefore fall outside the scope of this review.

In cases where an FOI body locates additional records during a review, it is the general practice of this Office to bring the review to a close without a determination on the question of access to those records and to remit the matter to the FOI Body for a fresh decision. In exceptional cases, the records may be considered as part of a current review. In this case, having examined the additional records, I have decided, having regard to their content, that it is best to consider the file B and C records as part of this review.

The scope of this review is confined to the following issues:

• Whether the HSE has justified its decision that section 15(1)(a) of the FOI Act applies as no further records exist or can be found after all reasonable steps to locate them have been taken;
• Whether the HSE has justified its decision to refuse in full or in part the following records on the basis of sections 35(1)(a) or 37(1) of the Act:
• File one records 1-140 (records 141 to 158 were created after the applicant's request and fall outside the scope of this review);
• File two records 3-137 and 146 to 294 (records 1-2 and 138-145 were created after the applicant's request and fall outside the scope of this review);
• Additional file B records 1-27;
• Additional file C records 1-28.

Preliminary Matters

Section 18 of the Act 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 created 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. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Section 22(12)(b) of the FOI Act provides that a decision to refuse a request under section 12 shall be presumed not to have been justified unless the head of the FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the HSE to satisfy the Commissioner that its decision to refuse access to the records was justified.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited. The release of a record under the FOI Act is considered, effectively, as release to the world at large.

Analysis and Findings

Section 15(1)(a) - "Search" issues
As the applicant argues that further relevant records ought to exist, section 15(1)(a) of the Act is relevant in this case. Section 15(1)(a) provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision that no further records exist is justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of his role in such cases was approved by Quirke J. in the High Court case of Matthew Ryan and Kathleen Ryan v. the Information Commissioner [2002 No. 18 M.C.A.] (available on this Office's website at www.oic.ie).

In her submissions to this Office, the applicant stated that she believes that a [named] social worker holds further records relevant to her request.

The HSE located three files of additional records during the course of the review. The additional records contain handwritten notes, letters and a report written by the social worker referred to by the applicant. The additional records also contain a CD provided by the social worker that was transcribed by the HSE. According to the HSE, the notes had not been entered in the applicant's file in a timely manner due to work pressures experienced by the social worker concerned and there was no deliberate attempt to withhold information. The HSE said that the social worker had confirmed that she does not hold any further records relevant to the applicant's request.

The HSE stated that searches for records were carried out in the relevant Health Centre by the Mental Health team. According to the HSE, searches were completed manually with reference to the client's name and computer records were also searched. The HSE took the position that that there is no other location where the records might be held. I note that the applicant has not identified any further particular records which she believes the HSE ought to hold. On the basis of the information provided by the HSE, I am satisfied that it has taken reasonable steps to search for records relevant to the applicant's request. I find, therefore, that section 15(1)(a) applies to the applicant's request.

Section 37 - Personal Information
Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. In a situation where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information about another party (or parties), and where it is not feasible to separate the personal information from that relating to the other party (or parties), it can be described as joint personal information. Section 37(7) further provides for the refusal of a request where the body considers that access to the record 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 other than the requester.

The FOI Act defines the term "personal information" as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. Section 2 of the Act details fourteen specific categories of information which is personal information without prejudice to the generality of (a) and (b) above.

In her submissions to this Office, the applicant states that she has been badly treated by the mental health services and she requires access to her full file to expose these wrongs and also to help her in a family law case.

In its submissions to this Office, the HSE stated that it withheld third party personal information from the records including the names of individuals other than the applicant and information provided in confidence by such individuals. The HSE stated that, following a further review of the records, it had released the information in relation to the applicant's minor children; however, it continued to withhold third party personal information regarding adults.

The records in this case are the applicant's mental health services records for the period from March 2015 to May 2016. Having examined the records, I note that the information withheld by the HSE refers to (1) persons other than the applicant, including third parties such as the family members of the applicant (but not including the applicant's minor children) and (2) the applicant and those third parties. It seems to me that, given their context and content, none of the withheld records within the scope of this review contain information which is personal information relating solely to the applicant. In considering this aspect, I have taken account of section 18 of the FOI Act as referred to earlier in this decision. On that basis, I find that the redacted parts of the withheld records, as identified on the schedule provided to the applicant, are exempt from release on the basis of section 37(1) and section 37(7) subject to the provisions of section 37(2) and section 37(5) which I examine below.

Section 37(2)
There are some circumstances, provided for at section 37(2) of the FOI Act, in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) (a), (b), (c), (d), or (e) arise in this case. In particular, I do not consider that it is appropriate to seek the consent of the individuals concerned to release of their information. Consequently, I find that section 37(2) does not apply to the details at issue here.

Section 37(5)
Section 37(5) of the FOI Act provides that a request which 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 concerned. In my view, the grant of the request would not benefit the individuals to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.

The Public Interest

Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. In relation to the issue of the public interest, it is important to have regard to the 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 ("the Rotunda case"). It is noted 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. Also, in a recent decision in F.P. v. the Information Commissioner[2016] IEHC 771, McDermott J. stated that the public interest in granting access to records under FOI is not to be determined on the applicant's personal circumstances or desire to pursue civil proceedings.

The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. This public interest has been served, to some extent, by the release of a large amount of information to date. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights in the language of section 37. It is also worth noting that the right to privacy also 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. I find that, in the circumstances of this case, the right to privacy of the third parties whose personal information is in the records outweighs the public interest in granting the applicant's request.

In summary, I find that sections 37(1) and 37(7) apply and that none of the exceptions under section 37 apply to the information.

In light of my findings that the withheld records are exempt under section 37, I do not consider it necessary to examine the HSE's claims for exemption 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 decision of the HSE to refuse access to the withheld records.

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.

Elizabeth Dolan
Senior Investigator