Case Number: 170035

Whether the HSE was justified in its decision to refuse access to information under sections 37(1) and 37(7) 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 23 September 2016, the applicants submitted a request under the FOI Act for access to records relating an alleged incident involving the applicants. The HSE granted access in part to a small number of records and refused access to the remaining records, under sections 37(1) and 37(7) of the FOI Act. The applicants submitted a request for an internal review, following which the HSE affirmed the original decision. On 21 January 2017, this Office received an application from the applicants for a review of the decision of the HSE.

In conducting my review, I have had regard to the submissions of the HSE and the applicants and to correspondence between the applicants and the HSE. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

Scope of Review

In its decision schedule, the HSE listed a number of records, many of which, it stated, were outside the scope of the applicants' request. The applicants' request was dated 23 September 2016. Records created after the date of an FOI request to a public body are not within scope of the request or of this review.

This review is concerned with whether the HSE was justified in deciding to withhold information in the records on the basis of sections 37(1) and 37(7) of the FOI Act.

Preliminary Matters

Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicants' motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions.

While section 18(1) 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 the provisions of section 18 do not 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.

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.

In their submission to this Office, the applicants raised an issue about the independence and impartiality of the internal review decision maker. Reviews carried out by this Office are de novo reviews, which means that I consider all of the relevant circumstances and information which exist on the date of my decision. I stress that the findings which follow concern the applicants' right to access records under the FOI Act and do not extend to any complaints they may have concerning the HSE's handling of the matters which are the subject of those records.

The applicants also suggested that some information in the records is incomplete, incorrect or misleading. This review is concerned solely with the issue of access to records, although it is open to the applicants to make a separate application for amendments to their personal information under section 9 of the FOI Act.

Analysis and Findings

Section 37(1) and 37(7) - 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 relating to an individual other than the requester. 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) provides for the refusal of a request for information which, if released, would result in the disclosure of personal information about other parties as well as about the requester.

Section 2 of the FOI Act defines "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to list fourteen categories of personal information including 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.

The HSE refused access to the remaining records under sections 37(1) and 37(7) of the Act, on the basis that refusing access to the records under section 37 of the Act would protect the personal information of persons other than the applicants.

It is clear from my examinations of the records that most of them disclose the personal information of parties other than the applicants and that much of this information is of a private and sensitive nature.

I am satisfied that the withheld information in all the records within the scope of this review is either personal information relating to individuals other than the applicants, or personal information relating to the applicants that is inextricably linked to the personal information of other individuals i.e. joint personal information. Accordingly, I find that section 37(1) and/or section 37(7) of the FOI Act applies to those records.

The effect of section 37(1) applying is that a record disclosing personal information relating to a third party or third parties cannot be released to another person, unless one of the other relevant provisions of section 37 applies, which I will deal with below.

Section 37(2)
Section 37(2) of the FOI Act provides for a number of circumstances 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) - the Public Interest
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 any 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.

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.

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will 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.

The applicants stated that it is in the public interest for them to have access to the complete set of records. They also stated reasons why they believe that they require access to all records. I can only take into account the purpose for which they seek the information to the extent that it might be a factor in weighing the arguments of public interest. However, I believe that the interest which the applicants set out is more properly viewed as a private rather than a public interest. I consider that I am supported in this opinion by the High Court decision of FP v The Information Commissioner [2016] IEHC 771. There, the Court found that the fact that the applicant sought access to information to establish whether he had a cause of action was to be disregarded by the Commissioner, except insofar as it might be relevant to consideration of some overall public interest. It went on to hold that the fact that access to records might assist the applicant in determining whether he had a cause of action or in advancing such a claim did not qualify as matters of public interest.

I must also bear in mind that release under the FOI Act is tantamount to release to the world at large, since there is no mechanism for restricting the information to the applicants under FOI.

Having regard to the above, on balance, I find that the right to privacy of the individuals whose personal information is in the records outweighs the public interest in granting the applicants' request.

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, on the basis of sections 37(1) and 37(7) 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.

Elizabeth Dolan
Senior Investigator