Whether the HSE was justified in its decision to refuse access to two records sought by the applicant relating to an incident in his home involving two HSE staff members under section 37 of the FOI Act

3 December 2018 

Background

The applicant submitted a request to the HSE on 29 August 2017 for all correspondence and notes regarding an incident in his home involving two HSE staff members who were caring for his mother. Following exchanges of correspondence between the parties, a number of relevant records were released to the applicant. However, two reports prepared by the two staff members were withheld and further exchanges of correspondence followed. On 15 March 2018 the HSE issued a decision in which it refused access to the two records under section 37 of the FOI Act. The applicant sought an internal review of the decision in respect of the two records, following which the HSE affirmed its decision to refuse access. The applicant sought a review by this Office of the HSE's decision on 26 June 2018. 

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. I have also had regard to the content of the records at issue.

Scope of Review

This review is concerned solely with the question of whether the HSE was justified in its decision to refuse access to two records sought by the applicant relating to an incident in his home involving two HSE staff members under section 37 of the FOI Act.

Analysis and Findings

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), 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 known as joint personal information).

For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. The definition also details fourteen specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including (iii) information relating to the employment or employment history of the individual and (v) information relating to the individual in a record falling within section 11(6)(a), i.e. personnel records of staff of FOI bodies.

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers).

The exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally. 

In its original decision on the request, the HSE argued that the two reports are held on the personnel files of the HSE staff members concerned and are covered by section 37. In his application for an internal review, the applicant argued that the reports at issue were generated as a result of an incident relating to the medical care of his mother and not for individual personal reasons. 

In its submission to this Office, the HSE stated that there may be times when staff members feel uncomfortable with events that take place during home visits and that staff may document when such issues arise that affect them on a personal level. It argued that this is why the reports at issue exist and are held on their personnel files. It argued that the reports were not written by the staff members in question for the purpose of the performance of their functions but rather, were their documented versions of the events of the day that personally affected them. It argued that staff members are entitled to bring up issues that arise within their place of work to their line managers in confidence and that it is obliged, as an employer, to deal with these matters in a confidential manner and to provide a safe working environment for their staff members.

Following receipt of the HSE's submission, Ms Whelan of this Office sought further clarification of the background to the reports at issue. She sought clarification as to whether the staff members submitted the reports of their own volition or whether they were asked to do so and whether the reports were created in response to an examination by the HSE of the relevant incident.

In response, the HSE stated that no documents were requested or created in response to an examination by the HSE of the incident and that the reports were not request but were submitted by the staff members of their own volition. However, Ms Whelan subsequently drew the HSE's attention to the contents of one of the records released to the applicant which indicated that the line manager of the two staff members had asked both staff members to submit a report, following phone calls he had received from both staff members on the day of the incident. In response, the HSE stated that it clarified the matter with the line manager who stated that the reports submitted were in line with normal practice in the service. He stated that any information verbally imparted is always followed by a documented report. He stated that this is not done on the basis of an investigation but rather, is the hard copy record of the verbal report and would contain the first hand information. The HSE stated its satisfaction that the reports were requested following the incident and that they pertain to the staff members' personal perspective.

I have concluded, on balance, that the reports at issue are not records that were prepared by the staff members concerned in the course of and for the purpose of the performance of their functions. Key to this conclusion is the fact that the staff members made the initial contact with their line manager to report issues that affected them. It is unfortunate that the HSE wrongly stated to this Office that the reports themselves were submitted by the staff members of their own volition. However, the records released to the applicant clearly indicate that the staff members made the initial contact by telephone with their line manager of their own volition. 

The reports contain the staff members' personal perspective of the incident at issue. I accept the HSE's contention that staff members may report issues that affect them and that such reports are retained on the personnel files of those individuals, as opposed to forming part of the official file of the service user. I find, therefore, that the exclusion to the definition of personal information set out in Paragraph 1 does not apply in this case.

I am satisfied that the reports comprise the personal accounts by the staff members of the incident at issue and therefore comprise their personal information. They also contain personal information relating to the applicant, his mother and his sister. I am satisfied that all of the information in the report comprises either personal information relating to the staff members or joint personal information relating to the staff members and the applicant and/or third parties. As such, I find that section 37(1) applies to the records. 

Section 37(5) - Public Interest
While section 37(1) is subject to other provisions of the section, only section 37(5)(a) is of relevance in this case, in my view. That section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates.

I must therefore consider whether the public interest in releasing the records at issue, on balance, outweighs the right to privacy of the individuals concerned.  In considering the public interest test at section 37(5)(a), I have had regard to the comments of the Supreme Court inThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner, [2011] 1 IR 729, [2011] IESC 26) (''the Rotunda case''). In that judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, 'a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law' must be distinguished from a private interest for the purpose of section 37(5)(a).

In relation to where the balance of the public interest lies, 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.

It seems to me that the public interest in the enhancement of transparency and accountability in relation to the manner in which the HSE dealt with the incident involving the applicant has been served to some extent by the release of the file notes held on his mother's file. The question I must consider is whether the public interest in further enhancing that transparency and accountability outweighs, on balance, the privacy rights of the staff members concerned. In light of the nature of the records and the context in which they were created, I find that it does not. 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 relevant records under section 37 of the FOI 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 to refuse access, under section 37, to two records relating to an incident in the applicant's home involving two HSE staff members 

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