Whether the HSE was justified in its decision to refuse access to records relating to misdiagnosed miscarriages at a hospital, on the grounds that they are exempt under sections 30, 35 and 37 of the FOI Act
24 April 2019
Background
On 25 May 2018, the applicant made a request to the HSE for "all records relating to the cases of two misdiagnosed miscarriages at [a named hospital] last year including but not limited to any correspondence including emails and any attachments therein between the hospital and the HSE. For clarity, the request is not seeking access to any personal files relating to the two cases but records generated in response to the two incidents". On 4 July 2018, the HSE refused access to the records on the ground that they were exempt under section 37 of the FOI Act. On 10 July 2018, the applicant applied for an internal review decision. On 4 September 2018, the HSE issued an "effective position" to the applicant, in which it varied its original decision, refusing access to the records on the ground that they were exempt under sections 30, 35 and 37 of the FOI Act. On 13 November 2018, the applicant applied to this Office for a review of the HSE's decision.
In conducting my review, I have had regard to the correspondence between the applicant and the HSE and to the correspondence between this Office and both parties, as well as the content of the records that were provided to this Office by the HSE for the purposes of this review.
Scope of this Review
The question for me is whether the HSE was justified in refusing access to the records under sections 30, 35 or 37 of the FOI Act. Records 1-7 are described in the HSE's schedule, which it gave to the applicant.
Preliminary Matters
Before considering the exemptions claimed, I would like to note the following. First, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.
Secondly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Finally, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited.
Analysis and Findings
Although the applicant made clear that he is not seeking access to personal files, given the content of the records under review, it is necessary to consider section 37 of the FOI Act.
Section 37 - Personal Information
Section 37(1)
Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term -personal information- as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition, which include: (i) information relating to the educational, medical, psychiatric or psychological history of the individual, (iii) information relating to the employment or employment history of the individual and (ix) a number, letter, symbol, word, mark or other thing assigned to the individual by an FOI body for the purpose of identification or any mark or other thing used for that purpose. Paragraph I of section 2 of the FOI Act excludes certain matters from the definition of "personal information", including the names of staff members of an FOI body and information relating to their office. However, as this Office observed inCase 090045 (Mr X and University College Cork), this exclusion "is intended, in essence, to ensure that section 28 [now section 37] will not be used to exempt the identity of a public servant while carrying out his or her official functions. The exclusions to the definition of personal information do not deprive public servants of the right to privacy generally".
In summary, the HSE says that the information constitutes personal medical information and that its patients have an expectation of absolute confidentiality and release of the information into the public arena would not be in the public interest. It also says that some information constitutes the personal information of staff.
The records relate to the misdiagnosed miscarriages of two women. They comprise incident reports, reviews and other records containing detailed information about the medical history of identifiable individuals other than the applicant. Having considered the highly sensitive content of the information concerned, I am satisfied that it is information which is held by the HSE on the understanding that it would be treated as confidential. In many instances, even if the patients' names were to be redacted, the content and context of the records could cause the women to be identified. Furthermore, I accept that a small piece of information relates to the employment of individuals other than the applicant and is not captured by the exclusion in Paragraph 1 of section 2. I am therefore satisfied that most of the records contain personal information as defined in section 2 of the FOI Act.
Having examined the records, I find that almost all are exempt under section 37(1) of the FOI Act, subject to the provisions of sections 37(2) and 37(5), which I examine below.
I will also identify and examine certain parts of the records with a view to identifying whether the records can be redacted and partially released, having regard to section 18 of the FOI Act, as outlined above.
Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply to the information concerned. That is to say, (a) it does not relate 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. I am then required to consider section 37(5) as it applies to the information.
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.
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.
The applicant submits that there is a strong public interest for the release of the records, subject to the redaction of any personal information. As noted above, I have found the information which I am now considering to qualify as personal information under the FOI Act.
On balance, I do not consider that the public interest that the request should be granted outweighs the public interest in upholding the right to privacy of the individuals to whom the records relate. I therefore find that section 37(5)(a) does not apply in the circumstances. It has not been argued that releasing the records would benefit the third parties to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances. I find that, with the exception of a small amount of information identified below, the HSE was justified in refusing access to the records under section 37(1) of the FOI Act.
What I will refer to as "the remaining information" is to be found in some records with information on recommended actions, together with minutes of meetings by the HSE on the cases concerned. Where such information is not inextricably linked to the personal information in the records and can be separated from it, I do not consider that section 37(1) applies. In identifying which parts of certain records could practicably be considered for release, subject to my examination of the other exemptions claimed, I also had to examine under section 18(2) whether the resulting redacted copy would be misleading and omit some parts on that basis. I find that the following parts of the information concerning the HSE's follow-up actions remain:
- Point 6 of Record 1
- Pages 1 and 2 of Record 4, except for the patients' names
I will now consider the remaining information under sections 30 and 35 of the Act, as applied by the HSE in its refusal of the request.
Section 35 - Information obtained in confidence
Section 35(1)(a) of the FOI Act provides that an FOI body shall refuse to grant an FOI request if the record concerned contains information given to an FOI body in confidence and on the understanding that it would be treated by it as confidential and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.
The HSE claims that section 35(1)(a) applies to the records, on the following basis. It says that information provided on attendance at hospital by patients is provided in a climate of confidentiality. It says that it is necessary for the HSE to be in a position to continue to receive such information for the benefit of those who avail of the services and in the public interest. It says that release of this type of information would influence the provision of services in the future, to the detriment of the public at large.
In my finding under section 37 of the FOI Act, I accepted that the information given by patients is held in confidence by the HSE and I found this information to be exempt under the FOI Act. The remaining information does not consist of information provided on attendance at hospital by patients. Rather, it is information generated by the HSE itself. I have no basis on which to find that section 35(1)(a) applies to the remaining information and I find that the HSE was not justified in refusing it on this ground.
Section 30 - Functions and negotiations of FOI bodies
Section 30(1)(a) allows an FOI body to refuse to grant an FOI request if access to the record could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Section 30(1)(b) allows an FOI body to refuse to grant an FOI request if access to the record could reasonably be expected to have a significant adverse effect on its functions relating to management. When a public body relies on section 30(1), it should first identify the potential harm and having identified the harm, consider the reasonableness of any expectation that the harm will occur. Section 30(1) is subject to a public interest balancing test in section 30(2).
The HSE claims that sections 30(1)(a) and (b) apply to several of the records. In its internal review decision, it says that the public interest would not be served by the HSE making public the exact enquiries and the methods and procedures employed thereof, as this will prejudice future investigations. It also says that it has considered the significant adverse effect on the management of staff in such cases.
During the review, the Investigator invited the HSE to make submissions on section 30. The HSE did not do so. Neither is it apparent to me on the face of the records that access to the remaining records could reasonably be expected to result in either of the harms identified in sections 30(1)(a) or (b). In the circumstances, I have no basis on which to find that section 30(1) applies to the remaining information and I find that the HSE was not justified in refusing it on this ground.
Decision
Having carried out a review under section 22(2) of the FOI Act, I vary the HSE's decision as follows. I affirm the HSE's decision on the majority of the information under section 37(1) of the FOI Act. I annul the HSE's decision on the remaining information and direct its release. For the avoidance of doubt, the information which falls for release is as follows: Point 6 of Record 1 and Pages 1 and 2 of Record 4, except for the patients' names.
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.
Elizabeth Dolan
Senior Investigator
