Whether the HSE was justified in its decision to withhold certain information from the applicant's psychiatric records under section 37(1) of the FOI Act
9 April 2019
Background
On 2 July 2018, the applicant submitted a request for records to the HSE in which he made reference to a GP and a consultant psychiatrist with whom he had engaged. On 16 November 2018, the HSE issued a decision in which it granted access to the applicant's psychiatric records held by its Mental Health Services, with the redaction of a small amount of information from a number of the records under section 37 of the FOI Act on the grounds that the disclosure of the redacted information would involve the disclosure of personal information relating to third parties.
The applicant sought an internal review of that decision, in which he speculated as to the identity of the third party. The HSE issued its internal review decision on 7 December 2018 in which it affirmed its original decision. The applicant subsequently sought a review by this Office of that decision.
I have decided to bring this case to a close by way of a formal, binding decision. In carrying out this review, I have had regard to the correspondence between the HSE and the applicant 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 withheld records, copies of which were provided to this Office by the HSE for the purposes of the review.
Scope of Review
In a submission to this Office dated 25 January 2019, the HSE stated that the applicant's request was for records held by his GP and by a consultant psychiatrist. It stated that the request was processed by two separate areas, namely the Primary Care Unit for GP records and the North Lee Mental Health Services for the applicant's psychiatric records.
With regard to the GP records, the HSE stated that a previous decision was issued to the applicant on 27 February 2018 wherein those records were partially withheld under section 37(3) of the FOI Act and that an option to review the records with a HSE Psychiatric Consultant was offered to him, pursuant to section 37(4). Under section 37(3), a public body may refuse a request where the request relates to records of a medical or psychiatric nature relating to the requester and the body considers that disclosure of the information concerned to the requester might be prejudicial to his or her physical or mental health, well-being or emotional condition. The HSE stated that the applicant did not seek an internal review of that decision and that at the date of its submission, the offer to review the records had not been availed of.
Having regard to that explanation and to the wording of both the application for internal review and the application for review to this Office, this review will not consider the question of access to the applicant's GP records. If he wishes to take up the HSE's offer to review the records, he should contact the HSE directly on that point. If, however, he wishes to challenge the HSE's decision to refuse access to any of those records under section 37(3), it will be necessary for him to make a fresh request for his GP records and to avail of the appropriate appeal mechanisms in the event that he remains dissatisfied with any subsequent decision taken on such a request.
This review is therefore concerned solely with whether the HSE was justified in its decision to redact certain information from the applicant's psychiatric records under section 37 of the FOI Act.
Preliminary Matters
Before I consider the substantive issues arising, I would like to make a number of preliminary comments. Firstly, while I note the reasons given by the applicant for wishing to access his records, the Act provides that in deciding whether to grant or refuse a request, any reasons that a requester gives for a request shall be disregarded, except in so far as those reasons reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.
Secondly, while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, I am constrained in the description which I can give of the information to which the HSE has refused access and of the reasons for my decision.
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).
Having examined the records in question, I am satisfied that the redactions contain either personal information relating solely to a third party or third parties, or personal information relating to the applicant that is inextricably linked to personal information relating to a third party (i.e. joint personal information). I am satisfied that the release of information relating to the applicant would also involve the disclosure of personal information relating to that third party. I find, therefore, that section 37(1) applies to all of the information redacted from the records at issue.
Section 37 also contains a number of provisions that serve to disapply section 37(1). Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply in this case, namely (a) the information contained in the records does not relate solely 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 at issue 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.
Section 37(5) provides that access to the personal information of a third party may be granted where (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 request would benefit the person to whom the information relates.
It has not been argued that releasing the records would benefit the person to whom the information relates and I am satisfied that section 37(5)(b) does not apply in the circumstances. In relation to paragraph (a), the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.
The FOI Act itself recognises the public interest in ensuring the transparency 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.
In my view, the public interest in enhancing the accountability and transparency of the HSE in terms of its engagements with the applicant has been served to a significant extent by the release of the vast majority of the information contained in the records concerned. The question I must consider is whether the public interest in further enhancing that transparency and accountability is sufficiently strong to outweigh, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates. In my view, it is not. In holding that view, I have had regard to the fact that the release of a record on foot of a request made under the FOI Act is, in effect, regarded as release to the world at large, given that the Act places no constraints on the potential uses to which released records released may be put.
In conclusion, therefore, I find that the HSE was justified in withholding the information redacted from the records at issue under section 37(1) of the FOI Act.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to withhold certain information from the applicant's psychiatric records under section 37(1) of the FOI Act on the grounds that the disclosure of that information would involve the disclosure of personal information relating to third parties.
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
