Whether the HSE was justified in deciding to refuse access to information in the applicant's son's medical file under sections 17(2)(b) and 37 of the FOI Act

12 February 2019

Background

On 17 July 2018, the applicant requested access to records held by the HSE relating to his minor son. On 6 September 2018, the HSE released some records in whole or in part and refused access to information in the remaining records under section 17(2)(b)(ii) (copyright) and section 37(1) (personal information) of the FOI Act. The HSE affirmed its original decision following an internal review request from the applicant. On 18 October 2018, this Office received an application for review of the HSE's decision from the applicant.

I consider that this review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to submissions received from the HSE and to correspondence between the applicant, the HSE and this Office. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. The applicant was invited to make a submission but none was received.

Scope of Review

This review is concerned solely with whether the HSE was justified in deciding to refuse access, in full and in part, to records on the basis of sections 17(2)(b) and 37(1) of the FOI Act.

Preliminary Matters

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 records is limited.

I also draw attention to the extent to which it is feasible to provide access to parts of records while refusing access to the remaining parts. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record.  Section 18 of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed.  This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading.  However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs.  Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Findings

Section 17(2)(b)(ii) - copyright
The HSE refused access to records 56-83, 85, 86, 125 and 126 comprising Assessment records about the applicant's minor son on the basis of section 17(2)(b)(ii). Given that the refusal was based on copyright concerns in the event that copies of the records were released, the HSE said that it offered the applicant a right of inspection of these records which he has not yet taken up. However, given the extent of personal information that appears in the records, I consider that section 37(1) is the most appropriate exemption to consider first in relation to them. 

Section 37- Personal Information
Section 37(1)
Section 37(1) of the FOI Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including "(xii) the name of the individual where it appears with other personal information relating to the individual or where disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual". 

Section 37(7) provides that a request shall be refused where access to a record would, in addition to involving disclosure of personal information relating to the requester, also involve the disclosure of personal information of other individuals (joint personal information).

While I cannot discuss their content in any detail, I can state that with the exception of records 56-83, 85, 86, 125 and 126 (to which I refer later in this decision), the information withheld in the records is personal information about third parties other than the applicant and his minor son, or personal information concerning third parties that is inextricably linked to personal information about the applicant and/or his minor son.

Accordingly, I find the records to be exempt under section 37(1) of the FOI Act. 

Section 37(2)
There are some further 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 in this case. 

In relation to 37(2)(b) and consent, this Office has considered whether, in all the circumstances of this case, it would be appropriate to seek the views or consent to release of the applicant's son, who is near the age of majority and whose personal information is contained in the records. There are circumstances in which one might reasonably seek the views of children on a matter affecting their interests and I refer to this matter further below in my comments on section 37(8). This Office has made the judgement that, in all the circumstances of this case, it would not be appropriate to seek the views of the applicant's son as to whether or not he consents to his father having access to his personal information. There are certainly circumstances in which one might reasonably seek the views of an individual below the age of majority, on a matter affecting his interests. In this case, I have had regard to the content of the records concerned, the potential for upset to the applicant's son, the third party content, and the fact that no evidence has been provided that the minor's mother has consented to his records being made available to his father. In any case, the records also contain the personal information of third parties who have not consented to their personal information being released to the applicant.

The applicant has not made a submission; neither has he indicated whether his son is aware of the FOI request for access to his personal information. In light of these circumstances, I have decided not to seek directly to establish the views of the applicant's son. 

Section 37(5) of the FOI Act 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.

In considering the public interest test in section 37(5)(a), I must have regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner (the Rotunda judgment), available at www.oic.ie. In its 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).

The FOI Act itself reflects a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business. Thus, in this case, I find that there is a general public interest in openness and accountability as to the manner in which the HSE carried out its functions.

On the other hand, the FOI Act recognises a very strong public interest in protecting privacy rights in the language of section 37. It is also worth noting that the right to privacy also 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.

The question I must consider is whether the public interest in the release of the third party personal information or joint personal information contained in the records outweighs, on balance, the significant public interest in protecting the privacy rights of the third parties to whom the information relates. In my view, it does not.

I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply. I cannot identify a public interest which would override the Constitutional rights to privacy of the third parties to whom the records relate. As regards section 37(5)(a), the public interest in openness and transparency in how the HSE dealt with the applicant has been served to a large extent by the release of information in the records to him. I find that, in the circumstances of this case and having regard to the judgment of the Supreme Court in the Rotunda case, the right to privacy of the individuals whose personal information is in the records outweighs the public interest in granting the applicant's request.

Section 37(8) - Access to the personal information of minors 
I am satisfied that records 56-83, 85, 86, 125 and 126 do not involve third parties. They contain personal information about the applicant's minor son which the HSE refused under section 17(2)(b)(ii) (copyright) of the FOI Act. On the face of it, these records are also exempt from release under section 37(1) of the FOI Act because they contain personal information about the applicant's son. 

However, the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 provide for access by parents and guardians to records of minors and certain others. The Regulations provide for a right of access by parents or guardians to the personal information of individuals who, at the time of the request, have not attained full age, and where the release of the information would, in the opinion of the public body and having regard to all the circumstances, be in the child-�s best interests.

The Supreme Court held in the case of McK v. The Information Commissioner[2006] IESC 2, available at www.oic.ie, that a parent is entitled to a rebuttable presumption that access to his or her child's medical information is in the best interests of the child. The Minister for Public Expenditure and Reform has published guidance in relation to access to records by parents under section 37(8) of the FOI Act (i.e. Central Policy Unit Notice 25, available on www.foi.gov.ie). Section 48(3) of the FOI Act provides that FOI bodies "shall have regard to" such guidance when performing their functions under the FOI Act. In particular, section 2.1(B) of the Minister's guidance lists the following as factors to be considered:

• would the minor consent to the release of the material?
• would release of the material damage the minor in some way? and
• are the records held in the minor's own right?

The guidance also suggests that, where appropriate, there should be a consultation with the minor concerned to establish his or her views on the release of his or her personal information to a parent. As discussed above, I do not consider it appropriate for this Office to contact the minor concerned. 

It is the HSE's view that, having regard to all the circumstances, release of information to the applicant about his minor son would not be in the child's best interests. This Office put the HSE's arguments to the applicant, who did not reply.

I am obliged to consider all circumstances set out by an FOI body when considering if release of information to a parent is in a minor's best interests. As already noted, the records contain personal and sensitive information. Particularly in the absence of submissions from the applicant, I consider the HSE to have justified its position that granting the request would not, having regard to all the circumstances, be in the best interests of the applicant's minor son. In the overall circumstances, and notwithstanding that the HSE is willing to offer the applicant a right of inspection of certain records under section 17, I find that it is not appropriate to direct that records 56-83, 85, 86, 125 and 126 be released under section 37(8) of the FOI Act. It is important to note that the disclosure of a record under FOI is understood, effectively, to be equivalent to its disclosure to the world at large. 

Accordingly, I find that the applicant is not entitled to access to the personal information of his minor son, or the joint personal information of the applicant and his minor son, further to the provisions of S.I. No. 218 of 2016. 

Having found section 37(1) to apply to all the records, I do not find it necessary to consider the decision of the HSE to exempt certain records on the basis of section 17(2)(b)(ii).

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 in full and in part to the withheld information in the records under section 37 of the FOI Act.

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