Whether the HSE was justified in refusing to release records of emails relating to a complaint made under the HSE's Dignity at Work Policy under section 37(1) of the FOI Act.

17/01/2018

Background

This review has its background in a complaint the applicant made under the HSE's Dignity at Work Policy. He alleged that certain emails had been written by the subject of the complaint which undermined and defamed him and on 23 February 2018 he submitted a three part FOI request for copies of emails for a specified period between certain specified individuals and/or groups.

On 23 April, the HSE decided to part-grant the request. It granted access to five pages of emails and refused access, in whole or in part, to the remaining 34 pages of emails it had identified as coming within the scope of the request under section 30(1)(a) on the ground that release might prejudice the outcome of the ongoing investigation being carried out under the Dignity at Work policy. The applicant sought an internal review of that decision, following which the HSE varied its original decision, relying instead on section 30(1)(b) to refuse access to the relevant records. On 5 July 2018 the applicant sought a review by this Office of the HSE's decision.

During the course of the review the HSE stated that it was no longer relying on section 30(1)(b) to refuse access to the records at issue and instead argued that certain of the records were exempt, either in whole or in part, under section 37(1) of the FOI Act, on the ground that the disclosure of the withheld information would involve the disclosure of personal information relating to individuals other than the applicant. It agreed to release certain parts of the withheld records that it considered not to be exempt under section 37.

I have decided to bring this review to a close by way of a formal binding decision. In conducting the review I have had regard to the HSE's correspondence with the applicant as outlined above and to the communications between this Office and both the applicant and the HSE on the matter. I have also had regard to the contents of the records at issue.

Scope of Review

In a submission dated 24 July 2018, the applicant argued that the HSE's response made it impossible to say if it had addressed the full scope of his request as it simply produced a schedule of records it considered to be relevant to the request rather than listing all correspondence requested. The schedule prepared by the HSE describes each of the 39 pages of e-mails it identified as coming within the scope of the request as "E-mail". It gave no indication as to the author or recipients of the emails, of the dates of issue, or as to what part of the three part request each page referred to. As such, it is understandable that the applicant expressed a concern as to whether all relevant records had been considered for release by the HSE.

I note that Mr O'Gorman of this Office raised the issue of the adequacy of the searches undertaken with both parties during the course of the review. Nevertheless, it is noteworthy that the applicant did not raise any such concerns with the HSE in his request for internal review. As such, the HSE was not given an opportunity to consider and respond to the applicant's concerns. The applicant's request for review and, indeed, his application for review by this Office, were concerned solely with the HSE's decision to refuse access to the records it identified as relevant to the request. He did not, at either stage, present any evidence to suggest that the HSE had not considered all relevant records for release. I do not consider it appropriate to issue a finding on the adequacy of the searches undertaken to identify all relevant records in this case in the absence of such concerns having been raised with the HSE in the first instance.

I would add that the Act does not require public bodies to search indefinitely for records, nor does it require them to carry out all searches that a requester believes should be carried out to locate relevant records. What the Act requires is that they carry out all reasonable searches to identify relevant records. What is reasonable in any case is dependent on the circumstances of the case. However, I would not generally expect that a public body should be required take steps to locate emails that have previously been deleted in line with its records management practices, nor do I consider that a public body should necessarily have to take steps to confirm with absolute certainty that no emails of a type sought have been deleted in the absence of any evidence to suggest that they may have been deleted.

Consequently, this review is concerned with solely whether the HSE was justified in refusing to grant access to the information withheld from the records it identified as coming within the scope of the applicant's request under section 37(1) of the FOI Act.

Analysis and Findings

Section 37(1) 

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. 

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 nature of the information at issue is somewhat limited. I can say, however, that it comprises, among other things, private email addresses and other information relating to third parties, and comments, concerns, and opinions expressed relating to the manner of the interactions of certain third parties with the applicant. 

I am satisfied that the withheld information relating to the applicant's interactions with certain third parties comprises personal information relating to the applicant. However, I am satisfied that it also comprises personal information relating to those third parties and that such information is not captured by the exclusion at Paragraph (I). As such, I find that it is joint personal information, which is protected from release in accordance with the provisions of section 37(7). I find, therefore, that section 37(1) of the Act applies to the withheld information, apart from the work email address of a staff member of a different public body that has been withheld from pages 11 and 12, and the final redaction of two words on page 11 which relate solely to the applicant. I note that the identity of the staff member of the other public body has been disclosed to the applicant in records already released.

I will now consider the applicability of section 37(2) and section 37(5) to the information to which I have found section 37(1) to apply.

Section 37(2)

There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. Section 37(7) is also subject to sections 37(2)(b) to (e). I am satisfied that none of these are relevant to the remaining information.

Section 37(5) - Public Interest

Section 37(1) is subject to other provisions of the section. In my view, only section 37(5)(a) is of relevance in this case. 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), it is important to have regard to the comments of the Supreme Court in The 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.

Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that in this case, the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions. The applicant argued that the right to privacy should not prevail where i) the information at issue is widely disseminated by the individual in question, or ii) the information relates to the concealment of unlawful or improper conduct, or iii) where it impinges on his constitutional right to a good name, or, iv) where the information relates to the business of the FOI body and does not affect privacy rights of individuals.

In Case 090261 (Mr P and the Health Service Executive and Our Lady's Hospital for Sick Children) the Commissioner stated that having regard to the Rotunda case, section 13(4) of the FOI Act, and the limits of his remit, he believed that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. The FOI Act expressly recognises the public interest in ensuring the openness and accountability of public bodies. 

On the other hand, the language of section 37 and the Long Title to the FOI Act recognises 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 of the HSE in how it dealt with the matters at the heart of the records at issue has been served to some extent by the partial release of the records sought. The question I must consider, therefore, is whether the public interest in further enhancing that transparency and accountability outweighs, on balance, the significant public interest in protecting the privacy rights of the third parties concerned. In my view, it does not. In forming this view, I am conscious of the fact that under FOI, records are released without any restriction as to how they may be used and, thus, release under FOI is regarded, in effect, as release to the world at large. I find, therefore, that section 37(5)(a) does not apply.  

In conclusion I find that the HSE was justified in refusing access to the information redacted from the records at issue under section 37(1) apart from the small amount of information described above to which section 37(1) does not, in my view, apply.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the HSE. I find that it was justified in refusing to grant access to the information withheld from the records it identified as coming within the scope of the applicant's request under section 37(1) of the FOI Act, apart from the work email address of a staff member of a different public body that has been withheld from pages 11 and 12 and the final redaction of two words on page 11 which relate solely to the applicant.

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Stephen Rafferty
Senior Investigator