Whether the HSE was justified in refusing access to records relating to an alleged investigation of a complaint made against the applicant by a HSE staff member under sections 15(1)(a) and 37(1) of the FOI Act

5 July 2018 

Background

This review concerns a HSE decision on three combined access requests regarding records from specified dates and periods, and certain named individuals. The applicant in his requests sought, variously

• records of meetings and correspondence
• the terms of reference of an investigation of a formal complaint made by a named individual 
• records regarding any meetings and all correspondence in relation to those terms of reference
• an incident report
• HSE policies followed in making the complaint; conducting the investigation; writing to him formally in that regard; and in making relevant decisions

The HSE part-granted the request on 31 August 2018. It provided the applicant with the relevant records it had identified apart from some information which it redacted under section 37(1) of the FOI Act. The applicant sought an internal review as he believed he had not received all relevant records. The HSE affirmed its decision on 11 October 2018. In that decision, the HSE stated that it had not been able to locate any further records and was therefore refusing the request under section 15(1)(a) of the Act. The applicant subsequently applied to this Office for a review of the HSE's decision. 
During the course of the review this Office's Investigator informed the applicant of his opinion that the HSE was justified in refusing the request. The Investigator invited the applicant to comment and informed him of his right to withdraw his application if he wished. No response has been received to date. I have decided to bring this matter to a close by way of a formal, binding decision. In conducting this review I have had regard to the relevant correspondence between the applicant and the HSE 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 the question of whether the HSE was justified in refusing access to the relevant records under sections 15(1)(a) and 37(1) of the FOI Act. 

Analysis and Findings

Section 15(1)(a) - Adequacy of search
The applicant contends that the HSE has not provided him with all relevant records. The HSE has submitted that all relevant records have been provided to the applicant, including policy documents that are also publicly available. Accordingly, the question I must now consider is whether the HSE has conducted all reasonable steps to locate and consider for release all relevant records.

The role of the Commissioner in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises 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. 

In its submissions the HSE provided details of the searches conducted in response to the applicant's request. As this Office has provided the applicant with those details already, I do not propose to repeat them in full. In short, the HSE stated that it had consulted all relevant persons and searched manually and electronically in the locations where it considered all relevant records might be kept. Specifically regarding the investigation and risk assessment records sought, the HSE submitted that no such investigation or risk assessment was conducted and therefore no such records exist. No evidence has been presented that would lead me to dispute the HSE's statements in this regard. The HSE's position remains that all relevant records that could be located have been released and that the additional records sought do not exist. 

While the applicant may be unhappy with the HSE's response, this review is confined to considering what relevant records actually exist as opposed to what records the applicant considers should exist. Having considered the details of the searches undertaken, I am satisfied that the HSE has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant's request. Therefore, with the exception of the information redacted under section 37(1), I find that the HSE was justified in refusing access to any additional records on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Section 37(1) - Personal information 
In relation to redactions made by the HSE under section 37(1), the applicant has confirmed that he is challenging only that in page 27 of the social work complaint file records released. 

At this point it should be noted that in making my decision, I must comply with section 25(3) of the FOI Act, which requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, I am constrained in the description I can give of the information to which the HSE has refused access and in the detail that I can give in my analysis. I must also take account of the fact that the grant of access to a record under the FOI Act is understood, effectively, to be equivalent to the record's release to the world at large. 

I have reviewed the full contents of page 27 carefully. The record is a letter written by a HSE staff member regarding a complaint made by the applicant to the HSE. It contains views of its author regarding the applicant's complaint, accounts of dealings with him, and statements he made in their presence. The record was released to the applicant apart from one sentence redacted on the ground that release would result in the disclosure of personal information of a third party/parties. 

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 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, commonly referred to as joint personal information. 

"Personal information" is defined at section 2 of the Act 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 an FOI body on the understanding that it would be treated by it as confidential. Section 2 also lists 14 non-exhaustive examples of what must be considered to be personal information. It is well settled that where information can be classified as one of the 14 examples of personal information, there is no need for the requirements of the definition to also be met.

Having carefully considered the contents of page 27 in the context of the matter to which it relates, I am satisfied that granting access to the redacted sentence would disclose joint personal information relating to the applicant that is inextricably linked to personal information of a third party/parties. In the circumstances, I find that section 37(1) applies. 

There are some circumstances, provided for at section 37(2), 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) provides that a record which is otherwise exempt under section 37(1) 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. No evidence has been presented to this Office to suggest that the release of the withheld information would be to the benefit of the parties concerned. Therefore, I find that section 37(5)(b) does not apply. 

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 individuals to whom the information relates. The FOI Act acknowledges that there is a public interest in ensuring the openness and accountability of public bodies in the manner in which they perform their functions. On the other hand, the 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. The right to privacy has a constitutional dimension. 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. 

Having considered the matter carefully, in my view, the public interest in release of the withheld information in this instance does not outweigh the public interest in protecting the privacy rights of the individual(s) to whom the information relates. I find, therefore, that section 37(5)(a) does not apply. 
In conclusion, therefore, I find that the HSE was justified in refusing access to the redacted information in page 27 under section 37(1). 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby find that the HSE was justified in its decision to refuse access under sections 15(1)(a) and 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.

Stephen Rafferty,
Senior Investigator