Whether the HSE was justified in its decision to withhold, under section 42(m)(i), the identity of an individual who made an elder abuse complaint against the applicant 

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 17 May 2017 the applicant submitted a request to the HSE for a copy of an elder abuse referral that was made against him and for the name of the complainant.  On 28 June 2017, the HSE issued a decision in which it granted access to the referral letter sought with the redaction of certain information under sections 35 and 37 of the FOI Act to protect the identity of the complainant. The applicant sought an internal review of the HSE's decision to refuse access to the identity of the complainant. The HSE issued an internal review decision to the applicant by letter dated 27 July 2017 in which it affirmed its original decision. On 26 September 2017, the applicant applied to this Office for a review of the HSE-™s decision to refuse access to the identity of the complainant.

I have decided to bring this case to a close by way of a formal, binding decision. In carrying out this review, I have had regard to the correspondence between the HSE and the applicant and to the communications between this Office and both the applicant and the HSE on the matter.

Scope of Review

This review is concerned solely with whether the HSE was justified in its decision to refuse access to the identity of the individual who made an elder abuse claim against the applicant.

Preliminary Matter

It should be noted that a review under section 22 of the FOI Act is considered de novo in that it is based on the circumstances and the law as they apply on the date of the decision.

Analysis and Findings

The HSE initially relied on sections 35 and 37 to refuse access to the complainant's identity. During the course of the review, Ms Hannon of this Office notified both parties of her view that section 42(m)(i) of the FOI Act was of more relevance given that only the identity of the complainant was at issue. Both parties subsequently made submissions on the matter in response to Ms Hannon's correspondence.

Section 42(m)(i) provides that the FOI Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal or lead to the revelation of the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, or where such information is otherwise in its possession. In essence, the section provides for the protection of the identity of persons who have given information to FOI bodies in confidence in relation to the enforcement or administration of the law to ensure that members of the public are not discouraged from co-operating with such bodies or agencies. 

For section 42(m)(i) to apply, three specific requirements must be met. The first is that release of the withheld information could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of the information. The second is that the information must have been given in confidence, while the third is that the information must relate to the enforcement or administration of the law.

First Requirement
As only the identity of the complainant is at issue in this case, the first requirement would clearly be met if the information sought was to be released.

Second Requirement
The second requirement for section 42(m)(i) to apply is that the provider of the information must have provided that information in confidence. 

In its submission to this Office, the HSE stated it is its practice to treat the identities of complainants as confidential as without an assurance or understanding that information being provided is provided in confidence, such persons may be reluctant to provide this type of information in the future. The HSE noted the applicant's argument that the complaint was made with malicious intent. In response, it stated that it is required to act upon every allegation of elder abuse and accepts that the disclosure of the identity of complainants, even where the evidence suggests that the complaint was maliciously motivated, could prejudice the flow of information which bodies such as the HSE rely upon to carry out their functions. 

This Office gives significant weight to safeguarding the flow of information to FOI bodies and accepts that the disclosure of the identity of complainants, even where the evidence suggests that the complaint was maliciously motivated, could prejudice the flow of information from the public.  This Office further accepts that in many situations the FOI body acts on the information provided in good faith. Indeed, the Commissioner has previously expressed the view that when the situation of the person who, in good faith, supplies information which is subsequently found on investigation to be inaccurate or mistaken is considered, the difficulty for the FOI body in handling such information in any other manner becomes apparent.

Having regard to the nature of the information at issue and to the HSE's position on the matter, I accept that the information was given in confidence in this case and I find that the second requirement has been met.  

Third Requirement
The third requirement is that the information provided to the FOI body relates to the enforcement or administration of the law. 

The HSE, in accordance with the provisions of the Health Act 2004 (as amended by the Health Service Executive Governance Act 2013), is the single body with statutory responsibility for the management and delivery of health and personal social services to the population of Ireland. Section 7 of the Health Act 2004 (as amended) states that the objective of the HSE is to use the resources available to it in the most beneficial, effective and efficient manner to improve, promote and protect the health and welfare of the public. The HSE, in its role of promoting and protecting the health and welfare of the public has developed policies in protecting the elderly in society from abuse. In light of the nature of the information given in this case, relating to alleged elder abuse, and having regard to the statutory responsibilities of the HSE in respect of such matters, I am satisfied that the information provided relates to the enforcement or administration of the law and that the third requirement is met.

Finding

I have noted the contents of the applicant's submission and his strong views as to why the identity of the complainant sought should be released. While I can empathise with the applicant's position, I am satisfied that the three requirements for section 42(m)(i) to apply are met in this case. Therefore I find that, by virtue of section 42(m)(i) of the FOI Act, the Act does not apply to the information sought. 

In light of this finding, it is not necessary for me to consider whether section 35(1) and 37 of the FOI Act also apply. 

Decision 

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse access to the identity of the individual who made an elder abuse complaint against the applicant under section 42(m)(i). 

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.

Stephen Rafferty
Senior Investigator