Case number: 170149

Whether the HSE was justified in withholding certain information relating to third parties from records on the applicant's file under section 28 of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 9 January 2013, the applicant made a request, through her representative, for access to her file held by Galway Mental Health Services. The HSE part granted the applicant's request on 30 October 2014 with the redaction of small parts of a number of records under sections 26 and 28 of the FOI Act. The applicant did not seek a review of that decision within the normal time frames, but rather requested a review some two years later on the basis that a copy of the appeals process had not been enclosed with the original decision. The HSE opted to accept the application for internal review despite the passage of time and on 17 November 2016 affirmed the original decision to withhold certain information. The applicant sought a review by this Office of the HSE's decision on 27 March 2017.

In carrying out this review, I have had regard to the correspondence between the HSE and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the HSE on the matter. In referring to the records at issue, I have adopted the numbering system used by the HSE in the schedule which accompanied its initial decision on the request.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

The HSE withheld certain information from records 11, 13, 16, 28, 67, 72, 75, 80, 100, 101 and 109 under sections 26 and 28 of the FOI Act . Therefore, this review is concerned solely with whether the HSE was justified in its decision to refuse access to the information in question.

Preliminary Matters

Before I address the substantive matters arising in this review, I would like to make the following comments. Firstly, it should be noted that a review by the Commissioner under section 34 of the FOI Act is de novo, which means that it is based on the circumstances and the law as they pertain at the time of his decision.

Secondly, it should be noted that the courts have taken the view that, under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large.

Analysis and Findings

Section 28
Section 28(1) of the FOI Act provides, subject to other provisions of section 28, for the mandatory refusal of a request if access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester. Furthermore, section 28(5)(B), also subject to other provisions of section 28, 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 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 "(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". I am satisfied that all of the withheld information comprises joint personal information relating to the applicant and other third parties. I find, therefore, that section 28(5)(B) of the Act applies to the information at issue.

The effect of section 28(5)(B) 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 28 applies, which I will deal with below.

Section 28(2) of the FOI Act sets out certain circumstances in which section 28(5)(B) does not apply. I am satisfied that none of those circumstances arise in this case. Section 28(5) of the FOI Act provides that a request that would fall to be refused under section 28(5)(B) 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 28(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.

The Public Interest
In relation to the issue of the public interest under section 28(5)(a), it is important to take note of the obiter 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 (which I shall refer to as 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.

Furthermore, section 8(4) of the FOI Act provides that, subject to the provisions of the Act, in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. In relation to the question of the public interest, therefore, the reasons for a request are only relevant insofar as they reflect or overlap with what may be regarded as a "true" public interest.

In this case, the applicant's representative stated that the request is for the purpose of a civil action and argued that in light of the particular circumstances of the applicant's situation, the public interest is in favour of disclosure of the records. In my view, seeking access to records for the purpose of pursuing a civil action is essentially a private interest. However, there is a strong public interest in ensuring the openness, transparency, and accountability of public bodies in relation to the manner in which they carry out their functions in dealing with matters such as arose in the particular circumstances of the applicant.

On the other hand, the Act also recognises the public interest in the protection of the right to privacy, both in the language of section 28 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 has been served to some extent in this case by the release of the vast majority of the applicant's file. The HSE has attempted to strike a balance between making as much information as possible available to the applicant while seeking to protect the privacy rights of the third parties concerned. The question I must consider is whether the public interest in releasing the remaining information sought outweighs, on balance, the public interest in protecting the privacy rights of the individuals to whom the information relates. In my view, it does not. It seems to me that the release of the redacted information will not enhance, in any significant way, the public interest in the transparency and accountability of the HSE. On the other hand, release of the redacted information, in circumstances where release under FOI is, in effect, disclosure to the world at large, would involve a significant breach of the privacy rights of the individuals concerned. I find, therefore, that section 28(5)(a) does not apply.

In conclusion, therefore, I find that the HSE was justified in its decision to refuse access to the withheld information under section 28(5)(B) of the FOI Act. I do not, therefore, consider it necessary to proceed to consider the applicability of section 26 to any of the redacted information.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse access to the information sought on the basis of section 28.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator