Whether the HSE was justified in its decision to redact certain third party personal information contained in the applicant’s medical records under section 37 of the FOI Act

26 September 2019

Background

On 27 May 2019 the HSE received a request from the applicant for access to his mental health records.

On 11 July 2019 the HSE granted partial access to the file, with the redaction of a small amount of information under section 37 of the FOI Act on the ground that the redacted information was personal information relating to third parties. The applicant sought an internal review of that decision. On 6 August 2019 the HSE decided to release a small amount of previously redacted information and affirmed the decision to refuse access to the remaining redacted information. On 12 August 2019 the applicant sought a review by this Office of the HSE’s decision.

I have decided to bring this review to a close by way of a formal binding decision. 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. In referring to the information at issue, I have adopted the numbering system used by the HSE in the schedule of records it prepared when processing the request.

Scope of the Review

The HSE made some minor redactions to page number 2 and it redacted the same information from page 22. Accordingly, this review is concerned solely with whether the HSE was justified in its decision to redact that information under section 37 of the FOI Act.

Analysis and Findings

Section 37(1) of the FOI Act provides that a public body shall refuse to grant 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 information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by an FOI body on the understanding that it would be treated by it as confidential.

I am satisfied that the information withheld in this case is personal information relating to individuals other than the applicant and that section 37(1) applies.

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, including where the individual concerned consents to disclosure. No such consent has been given in this case and I am satisfied that none of the other circumstances in section 37(2) apply in this case.

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 information would benefit the persons 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), I must consider 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.

The release of the withheld information in this case would not serve to enhance the transparency or accountability of the HSE in in relation to its dealings with the applicant. I find, therefore, that the public interest in granting the request does not, on balance, outweigh the public interest in protecting the right of privacy of the individuals to whom the information relates.

In conclusion, I find that the HSE was justified in withholding the information 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 redact certain information contained in the applicant's mental health records under section 37(1).

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

26 September 2019