Case Number: 170223

Whether the HSE was justified in its decision to refuse access to certain parts of the applicant's medical records under sections 31(1)(a), 35(1)(a) and 37(1) 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 16 May 2016, the applicant made a request to the HSE for access to her medical records concerning her admission to a hospital. The HSE did not issue a decision in accordance with the provisions of section 13(1) of the FOI Act. The applicant then submitted a request for an internal review on the basis of her request being deemed refused by the HSE, under the provisions of section 19(1) of the Act. In its decision of 10 November 2016, the HSE granted access in full to a number of records and withheld access, in full and in part, to information in other records on the basis of section 35 and section 37 of the FOI Act. On 9 May 2017, this Office received an application for a review from the applicant.

During the course of the review, the HSE released information in a number of records which it had previously withheld on the basis of section 37(1). In addition, the applicant queried whether other records might exist. The HSE has since indicated that additional records have been located. If those records are within scope, they have effectively been withheld, I propose to annul that part of the decision and require the HSE to make a new decision in respect of the additional records. The HSE has already undertaken to do this.

In conducting my review, I have had regard to the submissions of the HSE and the applicant and to correspondence between the applicant 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 forwarded to this Office the HSE stated that access to part of one record (no. 197) was refused on the basis of section 31(1)(a) of the FOI Act. The HSE did not inform the applicant of this exemption in the internal review decision. This Office told the applicant about the provisions of section 31(1)(a) and invited her to make a submission to this Office, which she did.

Consequently, this review is concerned with whether the HSE was justified in deciding to refuse access, in full and in part, to records on the basis of sections 15(1)(a), 31(1)(a), 35(1)(a) and 37(1) of the FOI Act.

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.

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.

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. However, this should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. 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.

Findings

Section 15(1)(a) - Adequacy of Search
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. My role in such cases is to review the decision of the FOI body and to decide whether that decision was 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 or her decision. The evidence in "search" cases consists of the steps actually taken to search for the 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 the records were reasonable. My Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner [2002 No. 18 M.C.A.]( available on www.oic.ie)

The HSE did not refer to section 15(1)(a) in its decisions to the applicant. However, on the basis of the information provided by the applicant to this Office, the Investigator queried whether the HSE was likely to hold more relevant records which it should have identified. The HSE subsequently identified additional records which it had not previously considered. At the time of making this decision, I am not aware of the HSE having notified the applicant of the existence of additional records, whether any or all of them are within scope of the applicant's request, or of its position on those records.

In the circumstances, section 15(1)(a) does not apply in this case. However, I do not consider that this Office should be required to make a first instance decision on the records recently identified by the HSE or, indeed, embark on a further investigation as to whether all the records held have now been identified and considered. I am satisfied that in this case it is appropriate to annul any decision of the HSE in respect of any additional records held and to direct that it conducts a fresh decision making process under section 13 of the FOI Act.

Section 31(1)(a) - Record considered to attract legal professional privilege
The HSE refused access to part of record 197 under section 31(1)(a) of the FOI Act.
Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. It does not require the consideration of the public interest. Previous decisions from this Office have accepted that legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (legal advice privilege), and
• confidential communications made between the client and a professional legal adviser or the legal adviser and a third party or between the client and a third party, the dominant purpose of which is preparation for contemplated/pending litigation (litigation privilege).

The HSE considers legal advice privilege to apply to the record concerned. Having examined the record, I accept that the withheld information in the record comprises legal advice sought and received, from the HSE's professional legal adviser. The applicant's submission suggested that the HSE might have waived privilege in respect of certain other legal advice. However, I have no evidence that privilege was waived in respect of record 197. Section 31(1)(a) is a mandatory provision and accordingly, I uphold the HSE's refusal of the information in the record concerned under section 31(1)(a) of the FOI Act.

Section 37 - Personal information
The HSE refused access to a number of records on the basis of section 35(1)(a) (Information obtained in confidence). However, given the extent of personal information that appears in the records, I consider that section 37(1) is the most appropriate exemption to examine in relation to all the remaining records the subject of this review.

Section 37(1)
Section 37(1) of the FOI Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. 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".

While I cannot discuss their content in any detail, I can say that the remaining records contain information relating to the applicant's family and other individuals. Having reviewed the relevant records and redactions, I am satisfied that all of the withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals. Accordingly, I find that section 37(1) and/or 37(7) of the Act apply to the records.

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 solely 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.
Section 37(5)(a) - The Public Interest
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 [2011] IESC 26 ("the Rotunda case") (available at www.oic.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 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.

In my view, the withheld information which the records contain is inherently private. I cannot identify a public interest which would override the Constitutional rights to privacy of the third parties to whom the records relate. It seems to me that the public interest in enhancing the transparency and accountability of the HSE in its dealings with the applicant has been served to a large extent by the release of the majority of the records held. I therefore find that section 37(5)(a) does not apply in the circumstances and that the withheld information in the records is exempt under section 37(1) of the FOI Act.

I am satisfied that all of the withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals. Accordingly, I find that sections 37(1) and 37(7) of the Act apply to the records.
Having found section 37(1) to apply to all the records, I do not find it necessary to consider the decision of the HSE to exempt certain records on the basis of section 35(1)(a).

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 part of record 197, on the basis that section 31(1)(a) of the FOI Act applies. I also affirm the decision of the HSE to refuse access to the remaining records in full and in part, on the basis of sections 37(1) and 37(7) of the FOI Act, since the withheld information concerns the personal information of third parties and other individuals which is inextricably linked to the personal information of the applicant. I annul its decision to effectively refuse access to further records identified during the course of this review and I direct the HSE to undertake a fresh decision making process on those records.

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