Whether the HSE was justified in its decision to refuse access to certain records concerning a work-related complaint under section 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 8 February 2017, the applicant made a request to the HSE for access to records concerning a complaint made against him under the HSE's Dignity at Work Policy. The HSE issued its decision in two parts; on 23 March and on 28 March 2017. In its original decision the HSE granted access to records in full and in part and refused access to other records under section 37(1) of the FOI Act. Following an application for an internal review, the HSE affirmed the decision, again in two parts; on 23 May and on 19 June 2017. On 19 July 2017, this Office received an application for a review from the applicant.
The records associated with this review are described by the HSE as 'File 1 and File 2-HR Department', and a particular Services area. During the course of the review, the HSE confirmed that all of the records in 'File 1-HR Department' were not part granted, as stated in the decision schedule, but were refused in full.
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
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 section 37(1) 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 applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of the public interest.
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.
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.
The applicant raised an issue of concern to him that the original and internal review decision makers were involved in the management of the complaint process involving him. It is not unusual for FOI decision makers to be involved in decisions concerning records in their own area of responsibility within a public body. I would note here that reviews carried out by this Office are de novo reviews, which means that the Commissioner considers all of the circumstances and information which exist on the date of a decision. I stress that the findings which follow concern the applicant's right to access records under the FOI Act and do not extend to other matters related to issues concerning the applicant and the HSE.
Findings
The HSE refused access to records 94-96 in the file of a particular Services area, on the basis that they are duplicates of records 3-5 in the Services file. Having examined records 94-96, I am satisfied that they are duplicates of records 3-5. The HSE granted access in part to records 3-5 on the basis of section 37(1). Those records are included in the review below.
Section 37- Personal Information
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".
Paragraph I of section 2 of the Act excludes certain matters from the definition of personal information where the individual holds a position as a member of the staff of the body, including his or her name, information relating to the position held or to the functions of the position, and the terms and conditions upon and subject to which the individual holds that position. However, this Office considers that the exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant while carrying out his or her official functions. The exclusions to the definition of personal information do not deprive public servants of the right to privacy generally. I am satisfied that the information in the records about individuals in the workplace is not of a type that would come within the exclusions to the definition of personal information.
Section 37(7) provides that a request shall be refused where access to a record would, in addition to involving disclosure of personal information relating to the requester, also involve the disclosure of personal information of other individuals (joint personal information).
While I cannot discuss their content in any detail, I can say that the records contain information relating to the complaint of bullying made under the HSE's Dignity at Work Policy. 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 apply to the records.
Section 37(2)
There are some further circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. Section 37(7) is also subject to sections 37(2)(b) to (e). I am satisfied that none of these are relevant 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)
Sections 37(5)(a) and (b) provide that a record, which is otherwise exempt under section 37(1), may be released in certain limited circumstances. The effect of section 37(5)(b) is that such an exempt record may be released if it can be demonstrated that the grant of the request would benefit the third party whose personal information is contained in the records. There is no obvious case, nor has such a case been made, that the third parties would benefit from the release of the records. Thus, I find that section 37(5)(b) does not apply in this case.
Section 37(5)(a) - The Public Interest
The effect of section 37(5)(a) is that a record, which has been found to be exempt under section 37(1), may be released if it can be demonstrated that, on balance, "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".
On the matter of where the public interest lies, I have had 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] 1 IR 729, [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. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.
The applicant did not specifically refer to the public interest in his application to this Office, although it is clear that he is dissatisfied with the outcome of the complaint process. However, I cannot take into account any private interests that the applicant may have in the release of the records. I accept that the FOI Act itself recognises a public interest in promoting the openness and accountability of FOI bodies. In the case at hand, there would be a public interest in establishing that the HSE dealt with the applicant in a way that was consistent with the principles of natural and constitutional justice. The HSE stated that it had addressed the public interest in granting access in full and in part to information in some of the records.
It would not be appropriate for me to direct the release of any third party personal information on the basis of the applicant's reasons as to why he required access to the records. As the Commissioner said in his composite decision in cases 090261/090262/090263, which was upheld by the High Court in FP v The Information Commissioner [2016] IEHC 771, "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."
On the other hand, both 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. I consider that a significant invasion of privacy would occur if the records were disclosed to the world at large, which is the effective result of releasing records under FOI.
I consider that the public interest has been met to some extent by the fact that the HSE instigated the procedure for investigation of the complaint. It seems to me that it would not be possible to serve the public interest in ensuring openness and accountability of the HSE further without breaching the right to privacy of third parties. Having considered the matter carefully, I find that the public interest served by the release of the records would not outweigh the public interest in upholding the right to privacy of the individuals other than the applicant whose personal information is in the withheld records.
In summary, therefore, I find that the applicant would not be entitled to the records further to sections 37(2) and 37(5) 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 to release the remaining records in full and in part to the applicant, under section 37(1) 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
