Whether the HSE was justified in deciding to refuse access to further records relating to insurance cover for the applicant under section 15(1)(a) on the ground that no further relevant records exist and to refuse access, under section 37, to a record containing the findings of an investigation carried out by the HSE

11/01/2018 

Background

The applicant submitted a request to the HSE on 23 October 2016 for access to certain information. Following an exchange of correspondence and a subsequent telephone conversation, the HSE accepted the request as one for details of the insurance cover the applicant had while working on HSE premises and for the findings of an investigation conducted into issues raised by the applicant in a letter dated 4 June 2015.

The HSE issued its decision on 6 December 2016, in which it provided some general information concerning the insurance arrangements in place for the HSE and refused access to the investigation report under section 37 of the FOI Act on the ground that release of the record would involve the disclosure of third party personal information. On 12 December 2016 the applicant sought an internal review of that decision on the ground that she was seeking specific insurance information (details and dates during which she was covered) and that she did not accept the HSE's reliance on section 37 for refusing the second part of her request. While further exchanges of correspondence followed, the HSE failed to issue an internal review decision on the request.

On 14 August 2017, the applicant sought a review by this Office of the HSE's decision. Following correspondence with this Office, the HSE wrote to the applicant on 4 September 2017, wherein it affirmed its original decision. On 13 September 2017, the applicant informed this Office that she wanted the review to proceed.

During the course of the review, the HSE provided this Office with information regarding the applicable record management policy, as well as the searches conducted to locate the records sought by the applicant. Ms McCrory of this Office provided the applicant with details of those searches by email on 10 November 2017. She also informed the applicant of her view that the HSE was justified in deciding that the records sought relating to insurance did not exist or could not be found, and that it was justified in withholding the investigation report under section 37 of the FOI Act. As the applicant has indicated that she disputes the HSE-™s position, I consider it appropriate to conclude this review by means of a formal, binding decision.

In carrying out my 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.

Scope of Review

This review is solely concerned with whether the HSE was justified in its decision to refuse the applicant-™s request for records relating to the insurance cover she had while working on HSE premises under section 15(1)(a) on the ground that these records do not exist or cannot be found, and in its decision to refuse access to an investigation report concerning issues raised by the applicant under section 37 of the FOI Act.

Analysis and Findings

Insurance Records
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in cases such as this 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/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in search cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.

It appears that the applicant was hoping to obtain access to specific records relating to her in connection with her insurance cover. The HSE explained that it is covered by State Indemnity and that any claims against it are managed by the State Claims Agency. It previously provided details of the State Indemnity. It stated that it has no records relating specifically to the applicant concerning her insurance cover. As outlined above, Ms McCrory of this Office provided the applicant with details of the searches it undertook to locate relevant records. The applicant has presented no evidence to suggest that relevant records should exist. Having regard to the details of the searches undertaken and of the explanation provided by the HSE of its insurance arrangements, I am satisfied that the HSE has carried out all reasonable searches in an effort to locate the records sought. I find, therefore, that it was justified in refusing the request for further relevant records under section 15(1)(a) on the ground that no such records exist.

Investigation Report
The HSE provided the following details of the background to the information sought by the applicant. The applicant was engaged to provide a specific service in connection with its mental health services. An issue was raised in July 2014 by the family of one of its service users concerning the applicant and the service user. The issue was reviewed by management and proposed to be dealt with under the HSE's Trust In Care Policy. This policy is concerned with upholding the dignity and welfare of patients/clients and sets out the procedures for managing allegations of abuse against staff members. While efforts were made to obtain agreement on the terms of reference between the parties to investigate the issues raised, the terms of reference were never agreed by the applicant. The applicant stopped providing a service to the HSE and as there was a failure to agree the terms of reference, the matter was closed.

At the request of this Office, the HSE provided this Office with a copy of the applicant's letter dated 4 June 2015 that the applicant's solicitors sent to the HSE, in view of the fact that her FOI request was for details of the findings of an investigation conducted into issues raised by the applicant in that letter. In the letter, while the applicant expressed her views in connection with the complaint made, she also recommended that certain matters concerning the service user be investigated. The HSE stated that due to the concerns raised pertaining to the service user, the consultant psychiatrist was requested by the clinical care director to examine the matter of the clinical care of the service user. The findings of the consultant were set out in a report dated 22 July 2015 to the clinical director. It is this report that the HSE considered to be captured by the applicant's request and to which access was refused.

Section 37(1) of the FOI Act provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual other than the requester. Furthermore, section 37(7) provides for the refusal of a request where access to the records sought would, in addition to disclosing personal information relating to the requester, disclose personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).

The report at issue makes it clear that its sole purpose is to inform the clinical director with regard to the service user's care. While the applicant is mentioned in the report, this is in the context of the applicant having raised concerns relating to the service user's care. It does not, in any way, address issues relating to the investigation that was proposed under the Trust In Care Policy and that ultimately never proceeded. The reference to the applicant is inextricably linked to personal information relating to other individuals. I am satisfied that the release of the report, even in redacted form, would involve the disclosure of personal information relating to an individual or individuals other than the applicant. I find, therefore, that section 37(1) applies to the entire report.

Section 37(2) sets out certain circumstances in which sections 37(1) and 37(7) do not apply. I am satisfied that none of those circumstances arise in this case. Section 37(5) of the FOI Act provides that a request that would fall to be refused under sections 37(1) and 37(7) 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. 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 relation to the issue of the public interest, it is important to have 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] 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.

The FOI Act itself recognises the public interest in ensuring the transparency 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.

The applicant has argued that there is a public interest in favour of release, as the record would provide further transparency around the treatment of mental health service users. Given the sensitivity of the record's subject matter and given that release under FOI is, in effect, release to the world at large, I consider that release of the record would involve a significant breach of the privacy rights of the individuals concerned. I am satisfied that the public interest in granting access to the record at issue does not, on balance, outweigh the privacy rights of the individuals concerned and I find that section 37(5)(a) does not apply.

I find, therefore, that the HSE was justified in withholding the record under section 37 of the 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 in this case. 

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