Whether the HSE was justified in its decision to withhold, under section 42(m)(i), the identity of the individual(s) who provided information to the HSE regarding the applicant

13 July 2018 

Background

On 12 January 2018 the applicant submitted a request for the names of complainants who stated to the HSE that he was not of sound mind. He also sought copies of all records in connection with the matter. On 13 February 2018, the HSE issued a decision in which it granted access to records relating to the matter with the redaction of certain information under sections 31(1) and 35(1) of the FOI Act, including the identities of the individual(s) who had contacted the HSE. The applicant sought an internal review of the HSE's decision to refuse access to the identities of the complainants. The HSE issued an internal review decision to the applicant by letter dated 3 April 2018 in which it affirmed its original decision. On 8 May 2018, the applicant sought a review by this Office of the HSE-™s decision to refuse access to the identities of the individuals who had contacted the HSE regarding him.

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 identities of the individual(s) who contacted the HSE to express concerns relating to the applicant's well being.

Analysis and Findings

The HSE initially relied on section 35(1) to refuse access to the identities of the individual(s) in question. During the course of the review, Ms Whelan 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 individual(s) was at issue. Both parties subsequently made submissions on the matter in response to Ms Whelan's correspondence, although the HSE maintained that section 35(1)(a) also applied.

Section 42(m)(i)

Section 42(m)(i) provides that the 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 identities 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 information must have been provided in confidence, while the third is that the information must relate to the enforcement or administration of the law.

First Requirement

The information at issue in this case comprises the names and contact details of the individual(s) who made the report to the HSE. It is clear, therefore, that the first condition has been met.

Second Requirement

The second requirement for section 42(m)(i) to apply is that the provider of information must have provided that information in confidence. In its submission to this Office, the HSE stated that the individual(s) concerned had provided information in good faith and on the understanding that their identity would not be revealed. It argued that section 42(m)(i) is aimed at ensuring that members of the public are not discouraged from co-operating with bodies or agencies in the enforcement and administration of the law and that the disclosure of such confidential information would be detrimental to the functions of the HSE in investigating allegations of elder abuse.

On the other hand, the applicant argued that no evidence had been made available to him to suggest that the individual(s) concerned had provided the information in confidence. He also argued that the information provided about him was untrue. 

Having examined the records held by the HSE on the matter, I accept that there is no evidence in the relevant records to state that the individual(s) concerned expressly sought an assurance of confidentiality in respect of their identity. Nevertheless, the HSE stated that the individual(s) in question made the report on the understanding that their information would be kept private and confidential and that the report was made in good faith.

This Office accepts that bodies such as the HSE act upon every report such as the type at issue in good faith and that the disclosure of the identities of complainants, even where the evidence suggests that the complaint was untrue, could reasonably be expected to prejudice the flow of information which bodies such as the HSE rely upon to carry out their functions. Indeed, the Commissioner has previously expressed the view that when one considers 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 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. These functions are carried out by the HSE Safeguarding Team as per the National Safeguarding Policy. In light of the nature of the information given in this case 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.

Having found that each of the three requirements are met, I find that section 42(m)(i) the FOI Act applies and that the HSE was justified in its decision to refuse access to the identity of the individual(s) who contacted the HSE to express concerns relating to the applicant's well being.

In light of this finding, it is not necessary for me to consider whether section 35(1) also applies.

Decision 

Having carried out a review under section 22(2) of the FOI Act, 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