Case Number: 170300

Whether the HSA was justified in refusing to release further information to the applicant relating to an investigation of an incident that he had been involved in on the basis of sections 30, 32, 35, 37 and 42(m)(i) 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

All references to "the applicant" in this decision can be taken to refer to the applicant and/or his solicitor, as appropriate. On 7 April 2017, the applicant sought access to records relating to an investigation carried out by the HSA into a workplace accident in 2015, when he incurred injuries. The HSA's decision on 26 April part granted his request in relation to 10 records which it identified as relevant to his request. It relied on sections 30, 32, 35, 37 and 42(m) of the FOI Act to withhold access to eight records in part and one record (Record 7) in full. It granted access to the remaining record in full.

The applicant sought an internal review on 9 May 2017 in respect of the HSA's decision to refuse to grant access to Record 7 in full and Record 8 in part. The HSA's decision on 22 May 2017 affirmed its original decision on the same grounds. On 7 June 2017, the applicant applied to this Office for a review of the HSA's decision in relation to Records 7 and 8.

During the course of this review, Ms Sandra Murdiff, Investigator in this Office, wrote to the applicant and informed him of her view that the HSA was justified in its decision to refuse to grant access to the information sought on the basis of section 37 of the FOI Act (personal information). She invited the applicant to comment and he indicated that he did not agree with her view.

I have decided to bring this review to a close by way of a formal binding decision.

In conducting this review I have had regard to the HSA's decisions on the matter and its communications with this Office; the applicant's communications with this Office and the HSA; and the contents of the records concerned.

Scope of Review

This review is solely concerned with whether the HSA was justified in refusing to grant access to Record 7 in full and Record 8 in part on the basis of sections 30, 32, 35, 37 and 42(m) of the FOI Act.

Preliminary Matters

Section 2 of the Act defines "record" as including "a copy or part" of anything falling within the definition of a record. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the FOI body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).

The Commissioner takes the view that neither the definition of a record under section 2 of the Act 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, he is not in favour of the cutting or "dissecting" of records to such an extent. He takes the view that, being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records

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

The HSA has relied on a number of exemptions to withhold information in this case. I am of the view that section 37 is the most relevant to the records at issue. Accordingly, I shall first consider the application of section 37 to the records concerned.

Section 37 - Personal Information
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI 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. Where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information relating to another party (or parties), and where it is not feasible to separate the personal information relating to the requester from that relating to the other party (or parties), it can be described as joint personal information and section 37(7) must be considered.

"Personal information" is defined in section 2 of Act as follows:

"Personal information means 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 that body as confidential,

and, without prejudice to the generality of the foregoing, includes -

(iii) information relating to the employment or employment history of the individual...
(xii) 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 records at issue comprise witness statements (Record 7 - withheld in full) and a summary report by a HSA inspector (Record 8 - withheld in part) based on witness statements. The information withheld from Record 8 comprises the names of third parties, as well as information derived from the witness statements themselves. The applicant is of the view that these records do not contain personal information. He contended that the information was not given in confidence and could not be "known only to the individual or members of the family or friends of the individual". However, following the Supreme Court's decision in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner[2011] IESC 26 (more commonly referred to as "the Rotunda case") I must proceed on the basis that information about an identifiable individual can qualify as personal information where it comes within either (a) or (b) above or where it comes within one or more of the categories (i) to (xiv) which are non-exhaustive.

The witness statements include the name, address, contact details, occupation and date of birth of each of the witnesses to the relevant incident. They also contain individual accounts of the incident, which took place during working hours, in the course of their employment. The applicant is of the view that removal of this identifying information would serve to anonymise the statements and allow release of the records under FOI. However, the records also contain information such as where each person was when the incident occurred, what they were doing in the lead up to the incident and how they reacted afterwards. Having reviewed the records concerned, I am of the view that release of any of the information withheld would make it very clear to the applicant, or anyone else who was involved in the incident, exactly who made each statement. I am also satisfied that the personal information of the applicant is so closely intertwined with the personal information of other parties that it is not feasible to separate the two.

In addition, I consider that it would not be feasible to redact additional information which could identify the witnesses from the records without causing the remainder of the records to be misleading (section 18 of the Act refers).

Having reviewed the 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) 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 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, the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or 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 Rotunda case. 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 argued that the witnesses had a "public duty to assist in the investigation of accidents" and stated that he did not know "what privacy rights they have".

It is important to note, as stated above, that release of records under FOI is regarded as release to the world at large. While the applicant also referred to the release of witness statements during court cases to support his arguments for release, this review solely concerns a decision to refuse access to records under FOI.

I must have regard to the provisions of the FOI Act, which 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 HSA in how it carries out its functions has been served to a large extent by the release of the majority of the records held.

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. 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.

Having found section 37 to apply to the information withheld from both records, I do not find it necessary to consider the decision of the HSA to refuse access to the records sought on the basis of other exemptions in the Act.

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 refuse access to the information at issue on the basis of section 37 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