Whether the HSE was justified in its decision to refuse access to a record under sections 30(1)(b) and 37(1) of the FOI Act

28 November 2018 

Background

This review follows on from a decision I issued in a previous review in Case 180193. In that case, the applicant was aware that at some stage in August 2017, a document had been submitted to the management of the hospital where she works in which she was mentioned and she submitted a request for all records received by hospital management referring to her around the period in question.

The HSE had refused the request on the basis that the relevant record was no longer held by the HSE. During the course of that review, a copy of the record was located so I annulled the decision of the HSE and directed it to undertake a fresh decision-making process on the record.

Subsequently the HSE refused access to the record under sections 30 and 37 of the FOI Act. The applicant sought an internal review of the HSE's decision following which the HSE affirmed its original decision. The applicant sought a review by this Office of that decision on 28 August 2018. 

In carrying out my review, I have had regard to the correspondence between the HSE and the applicant. 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 record at issue. 

Scope of Review

This review is concerned solely with the question of whether the HSE was justified in refusing access to the record under sections 30 and 37 of the Act. In addition, the applicant clarified that she is seeking access only to those parts of the record which refer to her. Accordingly, I will not consider for release those parts of the record which do not relate to the applicant. 

Preliminary Matter

While I am required to give reasons for my decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. This means that the reasons I can give for my decision in this case are somewhat limited.

Analysis and Findings

The record at issue is a letter that an employee of the hospital submitted to his line manager in which he outlined certain concerns he had regarding workplace issues. The HSE relied on sections 30(1)(b) and 37 of the FOI Act in refusing access to the record. As section 37 provides for a mandatory exemption, I will consider that section first.

Section 37
Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester. Furthermore, section 37(7) provides for the refusal of a request where 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, and where it is not feasible to separate the personal information relating to the requester from that relating to the other party. Such information is commonly referred to as joint personal information.

The FOI Act defines the term "personal information" as information about an identifiable individual that either (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 an FOI body on the understanding that it would be treated by the body as confidential. Certain information is excluded from the definition of personal information, including anything written or recorded in any form by a member of the staff of a public body in the course of andfor the purpose of the performance of his or her functions.

The HSE argued that the record as a whole constitutes the personal information of the author, in that it is a confidential letter from an employee to his line manager and that it falls for protection under section 37(1). Having considered the contents of the record and the HSE's explanation of the circumstances under which it was submitted to the hospital, I am satisfied that the entire record comprises personal information relating to the applicant. I am also satisfied that the information in the record cannot reasonably be described as having been written or recorded by the staff member in the course of and for the purpose of the performance of his functions. 

Certain parts of the record refer to the applicant. The HSE accepts that the information in the record relating to the applicant comprises her personal information but it argued that it is linked with personal information relating to the author of the record and other colleagues. I agree. I am satisfied that the personal information relating to the applicant is inextricably linked to personal information relating to the author of the record and that it is joint personal information relating to both parties. As such, the disclosure of the information sought would also involve the disclosure of personal information relating to the author. I find, therefore, that section 37(1) applies.

There are some circumstances, provided for at section 37(2), in which section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. Furthermore, section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates. 

I am satisfied that section 37(5)(b) does not apply in this case. On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates.

On the matter of where the public interest lies, 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). 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. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally. 

The FOI Act recognises a public interest in the promotion of openness and accountability in how public bodies perform their functions. However, 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. 

While I accept that there is a public interest in the applicant accessing personal information relating to her, the release of the information in the record would also involve the disclosure of personal information relating to third parties. Therefore, the question I must consider is whether the public interest in support of release of the information outweighs, on balance, the public interest in protecting the privacy rights of that third party. Having regard to the nature of the information concerned, I am satisfied that it does not. 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 record under section 37(1) of the Act. 

Section 30(1)(b)
Having found section 37(1) to apply, it is not strictly necessary for me to consider the applicability of section 30(1)(b). However, in light of the arguments presented by the HSE, I think it would be useful for me to set out my findings on applicability of the exemption to the record at issue. Section 30(1)(b) provides for the refusal of a request if access to the record could reasonably be expected to have a significant, adverse effect on the performance by the body of any of its functions relating to management (including industrial relations and management of its staff). 

The HSE stated that the author of the record at issue subsequently decided to withdraw the record following a meeting with management. It stated, however, that some staff had gained knowledge of the record and it went on to describe some of the consequences of this, including disciplinary, sick leave, and low morale issues, the engagement of an external consultant and a significant number of meetings held with staff over a short period. It argued that the fallout from the incident has already had a significant, adverse effect on the hospital's management of the department and that if parts of the record are now released into the public domain, the department will suffer more negative consequences. It is noteworthy that the release of a record under FOI is, in effect, considered to be release to the world at large as the Act imposes no constraints on the uses to which a released record may be put.

In light of the HSE's submissions, I accept that the release of the relevant parts of the record at issue to the applicant could reasonably be expected to have a significant, adverse effect on the performance by the hospital of its functions relating to management, including industrial relations and management of its staff. I find, therefore, that section 30(1)(b) applies.

Subsection (2) of section 30 provides that subsection (1)(b) does not apply where the public interest would, on balance, be better served by granting than by refusing the request. As a general proposition, I agree that there is a public interest in public bodies operating in an open and transparent manner. However, the Act requires that the public interest in releasing information which might contribute to such openness and transparency must be balanced against the harm which might be occasioned by its release, which under the FOI Act amounts to disclosure to "the world at large". There is a significant public interest in ensuring that the hospital performs its role relating to management and industrial relations effectively and efficiently. I find that the public interest would not, on balance, be better served by the release of the records at issue. I find, therefore, that the HSE was justified in refusing the request. 

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 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