Whether the HSE was justified in its decision to refuse the applicant's request for access to a specific piece of correspondence sent to the HSE by a named individual, and to any further correspondence between that individual and the HSE on the ground that the information is exempt under sections 35 and 37 of the FOI Act.

09/02/2018

Background

This review has its background in a paternity dispute involving the applicant. On 6 July 2017 the applicant submitted a request to the HSE for a copy of a written submission made by the child's mother objecting to the District Court naming the applicant as the father, and any further correspondence between the HSE and the mother on the matter. In its decision of 3 August 2017, the HSE refused access to the written submission on the ground that it was given in confidence and contained personal information relating to individuals other than the applicant. It made no reference to the applicant's request for any further correspondence.

On 15 August 2017, the applicant sought an internal review of that decision, following which the HSE affirmed its original decision to refuse access to the written submission. On 8 September 2017, the applicant sought a review by this Office of that decision.
 

I have now decided to conclude this review by way of a formal binding decision. In concluding this review, I have had regard to correspondence between the applicant and the HSE, to correspondence between this office and both the applicant and the HSE, and to the contents of the records at issue.

Scope of Review

During the course of the review, the HSE informed this Office that due to an administrative oversight it did not consider the second part of the applicant's request, and that it had identified a number of additional records relevant to that part. On 2 November 2017, it notified the applicant of its position that the additional records were exempt under sections 35 and 37 of the FOI Act. The HSE has since provided this Office with a copy of these records.

This review is therefore concerned solely with the question of whether the HSE was justified in its decision to refuse the applicant's request for the records sought under sections 35 and 37 of the FOI Act.

Analysis and Findings

In refusing access to the records at issue, the HSE relied on sections 35 and 37 of the FOI Act. As section 37 is, in my view, of most relevance, I will consider that exemption first.

Section 37(1)

Section 37(1) provides for the mandatory refusal of access to a record where the FOI body considers that access would involve the disclosure of personal information relating to individuals other than the requester. Furthermore, section 37(7) provides that a public 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, commonly referred to as joint personal information. Personal information is defined, at section 2 of the FOI Act, as information about an identifiable individual that (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 a public body on the understanding that it would be treated by it as confidential.

The records sought by the applicant comprise the written submission made by the child's mother and further correspondence from the HSE to the child's mother. For the purposes of the FOI Act, the records contain personal information relating to the applicant, the child, and the child's mother. Having carefully examined the records, I am satisfied that the information in each of the records is either personal information relating to the mother, or personal information relating to the applicant and or the applicant's child that is inextricably linked to personal information relating to the mother. In other words, the disclosure of each record would involve the disclosure of personal information relating to the child's mother. I find, therefore, that section 37(1) applies.

I note the applicant's argument that as the HSE had already given him certain details about the letter concerning the mother's objections outside of FOI, its reliance on section 37 in respect of that record was invalid. I disagree. The fact that the HSE chose to reveal certain, broad details about the letter concerning the mother's objections to the applicant does not diminish the personal nature of the information at issue.

Section 37(2) and 37(5)

There are certain circumstances, provided for under section 37(2) and 37(5), in which the exemption set out in section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. Section 37(5) provides that a record, which is otherwise exempt under section 37, may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I do not consider that the release of the information at issue would benefit the mother, as envisaged by section 37(5)(b) of the FOI Act.

On the matter of whether section 37(5)(a) applies, I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual to whom the information relates. There is a distinction to be made between a request made by a private individual for a private purpose and a request made in the public interest. 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.

While there is a public interest in the HSE being open, transparent and accountable in the manner in which it performs its functions, the FOI Act also recognises the public interest in the protection of the right to privacy, both in the language of section 37 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore 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 argued that the HSE should have considered the potential emotional and financial toll that refusing the information may have on him, along with the impact on the third parties concerned. He also argued that parental certainty is a public interest that far outweighs any of the arguments of the HSE. While the applicant contended that these arguments comprised public interests within the context of section 37(5)(a), it seems to me that these are more accurately described as private interests. Although I can understand the applicant's concerns, I must have regard to the fact that disclosure of a record under FOI is, in effect, disclosure to the world at large, given that the Act places no constraints on the uses to which the information contained in the record may be put.

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 some degree by its acknowledgement of the general content of the letter concerning the mother's objections. Accordingly, I consider that the public interest in the release of the information at issue does not, on balance, outweigh the public interest in protecting the privacy rights of the mother. I find, therefore, that section 37(5)(a) does not apply. Accordingly, I find that the HSE was justified in its decision to refuse access to the records sought by the applicant in this case.
 

For the sake of completeness, I want to explain that the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016, are not applicable to this review. The Regulations, in accordance with section 37(8) of the FOI Act, provide for a right of access by parents or guardians to the personal information of individuals who, at the time of the request, have not attained full age, and where the release of the information would, in the opinion of the public body and having regard to all the circumstances, be in the child-™s best interests. If the records in this case only contained personal information relating to the applicant and the child, the applicant may have had a right of access under the Regulations, in his capacity as a parent of the child, if the release of the information was determined to in the best interests of the child. However, the Regulations do not apply where the information is joint personal information, i.e. personal information relating to a child and a third party. As the information at issue in this review is joint personal information relating to a third party, i.e. the mother, the Regulations do not apply and applicant does not have a right of access under the Regulations.

Given my findings regarding section 37 of the FOI Act, there is no need for me to consider the section 35 exemption in this review.

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 the records sought under section 37.

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