Whether the HSE was justified in refusing access to parts of a record on the grounds that it contained the personal information of persons other than the applicant and was exempt under section 37 of the FOI Act 

31 October 2018 

Background

On 16 March 2018, the applicant made an FOI request to Cork University Hospital for her medical records ranging in date from 2 January 2018 to 31 January 2018.  The HSE refused the request on the basis of section 32(1)(b), i.e. that access to the records concerned could, in its opinion, reasonably be expected to endanger the life or safety of any person.  The applicant sought an internal review of the decision and stated that she received her medical records on 28 March 2018, but that one record was missing - a copy of a fax dated 4 January 2018.  The applicant stated that she wished to appeal the decision not to grant her access to this record.  In an internal review decision dated 30 April 2018, the HSE upheld the earlier decision.  The applicant subsequently applied to this Office for a review of that decision.  

In conducting my review, I have had regard to the correspondence between the applicant and the HSE as outlined above and to the correspondence between this Office and both parties, as well as the contents of the withheld record that was provided to this Office by the HSE for the purposes of this review. 

Scope of the Review

In her request for an internal review the applicant was clear that she was seeking access to one missing record, namely a copy of a fax dated 4 January 2018 from one doctor to another.  This review is therefore concerned solely with whether or not the HSE was justified in refusing access to that record.  

Following discussions with this Office, the HSE agreed to release a redacted version of the record to the applicant.  A small amount of third party information was redacted on the basis of section 37 of the FOI Act.  

This review is therefore concerned with whether or not the HSE was justified in refusing access to the withheld parts of the record under section 37 of the FOI Act.  

Preliminary Matters

Before considering the exemptions claimed, I wish to make the following points.  First, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach.

Further, although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the record is limited. 

Analysis and Findings

Section 37 - Personal information

Although the HSE did not initially claim section 37 of the FOI Act in this case, this Office wrote to the applicant advising her that this exemption could apply and offering her the opportunity to make any submissions she deemed relevant to the review.  The record predominantly relates to the applicant; however, it does contain some small references to other individuals.  These references were redacted by the HSE.  

Sections 37(1) and (7)

Section 37(1), subject to other provisions of section 37, is a mandatory exemption.  It requires the refusal of access to a record containing the personal information of a party other than the person(s) seeking the record.  Section 37(7), also subject to other provisions of section 37, provides for the refusal of a record that contains the personal information of the person making the FOI request and that of another party or parties (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."

Section 2 goes on to list 14 examples of personal information, including "(i) information relating to the educational, medical, psychiatric or psychological history of the individual and (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.  

In the circumstances, I am satisfied that the redacted portions of the record contain the joint personal information of the applicant and other identifiable individuals.  Section 37(1) and/or (7) of the FOI Act therefore applies.  This is subject to section 37(2) and 37(5), which I will consider below.  

Section 37(2)

I am satisfied that none of the circumstances in section 37(2) apply to the record. That is to say, (a) the redacted information contained in the record does not relate solely to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. 

Section 37(5) - The Public Interest

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the request would benefit the person to whom the information relates. 

In relation to the issue of the public interest, it is important to have regard to theobitercomments of the Supreme Court inThe 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 openness 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. 

In my view, the redacted information is inherently private. It relates principally to the applicant's interactions with other named individuals in a psychiatric setting. I consider this to be highly sensitive information, which is extremely personal to both the applicant and the third parties concerned. I cannot identify a public interest which would override the Constitutional rights to privacy of the other third parties to whom this information relates. Further, it could be argued that the public interest in ensuring the openness and accountability of public bodies has been largely satisfied by the release of the majority of this record to the applicant.  I therefore find that section 37(5)(a) does not apply in the circumstances. 

It has not been argued that releasing the remaining records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances. 

Given my finding, I see no need to consider section 32 of the FOI Act.  

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the HSE's decision to refuse access to parts of the record on the basis that they contain the joint personal information of the applicant and other individuals.  I find that section 37 of the FOI Act applies.  

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.

Elizabeth Dolan
Senior Investigator