Whether the HSE was justified in its decision to withhold certain information contained in a medical record relating to the applicant under section 37 of the FOI Act

25 October 2019

Background

On 21 August 2018, the applicant submitted a request to the HSE for access to copies of his admission and outpatient files.  On 5 November 2018, the HSE released a significant number of records to the applicant, withholding one record in full and 31 records in part (including record 153) under section 37 of the FOI Act, on the basis that the withheld information related to third parties.  On 19 November 2018, the applicant sought an internal review of that decision. On 15 April 2019, the HSE issued its internal review decision, wherein it varied its original decision and granted access to all of the records with the exception of record 153.  On 12 July 2019, this Office received an application from the applicant for review of that decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the HSE and the applicant as outlined above and to correspondence between this Office and both the HSE and the applicant on the matter. I have also had regard to the content of the record at issue.

Scope of Review

During the course of this review, the HSE confirmed that it had released record 153 to the applicant in part, with the redaction of the second and third sentences.  This review is solely concerned with whether the HSE was justified in withholding that information from record 153 under section 37 of the FOI Act.

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).

Section 2 of 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.

Having reviewed the record at issue, I am satisfied that all of the withheld information is personal information relating to the applicant that is inextricably linked to the personal information of other individuals, i.e. joint personal information. Accordingly, I find that section 37(1) applies to such information. 

Section 37(2) sets out certain circumstances in which section 37(1) does not apply.  I am satisfied that none of those circumstances arise in this case.  Furthermore, 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.

As no evidence has been presented to this Office to suggest that the release of the withheld information would be to the benefit of the third parties concerned, I find that section 37(5)(b) does not apply.  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.

In considering where the public interest lies, I have had 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.

The FOI Act acknowledges that there is a public interest in promoting the openness and accountability of public bodies in the manner in which they 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 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 both promoting openness and accountability of the HSE and in the applicant accessing personal information relating to him, the release of the withheld information 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 the individuals to whom the information relates.  Having regard to the nature of the information concerned, I am satisfied that it does not.  In holding this view, I am particularly cognisant of the fact that release under FOI is, in effect, release to the world at large given that the Act places no constraints on the uses to which information released under FOI may be put. I find therefore, that section 37(5)(a) does not apply.

Consequently, I find that the HSE was justified in its decision to refuse access to the information withheld from the record at issue under section 37 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 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