Whether the HSE was justified in its decision to refuse to grant access to records under sections 35 and 37(1) of the FOI Act

25 February 2020

Background

On 27 August 2019, the applicant submitted a request under the FOI Act for access to records held by the HSE concerning the applicant and a third party. The HSE granted access to a number of records in full and in part. It refused access to other records in full and in part under section 35 (Information obtained in confidence) and section 37 (Personal information) of the FOI Act.  The HSE stated that it was not satisfied with the nature of the consent provided by the applicant in that it considered that the communication provided did not adequately demonstrate that the third party is aware of the personal information which would be disclosed if the request was granted.

The HSE affirmed the original decision following an application for an internal review. It stated that it also had concerns about the consent provided having regard to the content of the records, the capacity of the third party and “safeguarding” issues.

On 29 August 2019, this Office received an application for a review of the HSE’s decision from the applicant.

The HSE refused access to a number of records on the basis that they were “Already in requester’s possession” and “Already in solicitors [sic] possession”.  In effect the HSE refused access to those records under section 15(1)(i)(i) (records are available to the requester) of the Act but did not refer to the exemption in its decision. Following enquiries from this Office during the review, the HSE stated that it had made arrangements for the records to be copied and released to the applicant.

In conducting my review, I have had regard to the submissions of the HSE and to correspondence between this Office and the applicant and the HSE. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

The applicant did not make a submission. However, during the course of the review the Investigator spoke to the applicant and explained the Office's views on the records and on the exemptions applied by the HSE.

Scope of Review

This review is concerned with whether the HSE was justified in deciding to refuse access to records in full and in part under sections 35(1) 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.

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.

I note that the records at issue in this case are of a private and personal nature. When a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.

Analysis and Findings

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 "(i) information relating to the educational, medical, psychiatric or psychological history of the individual, and (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).

Due to the sensitive nature of the records, I cannot discuss their content in any detail, other than to state that the withheld information is sensitive personal information about third parties other than the applicant, as well as joint personal information about the applicant and a third party or parties. The personal information of the applicant is inextricably linked to that of other identifiable individuals.

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(2)(b) provides that section 37(1) does not apply if consent is made in writing by the individual to whom that information relates. The section further provides that consent should be established to the satisfaction of the head of an FOI body. The HSE stated that is has some doubts about the consent supplied with the request. Other than the text of purported consent, the applicant did not offer any additional evidence concerning the consent of the third party concerned to the release to him of personal information. I am not satisfied that given the circumstances, this Office can proceed on the basis that any of the third parties whose information appears in the records have given appropriate consent in accordance with section 37(2). Neither is it necessary or appropriate for this Office to approach individuals to seek their consent to the release of sensitive personal information. I find that section 37(2) does not dis-apply the section 37(1) exemption in this case.

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.

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.

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.

Section 37(5)(a) - the Public interest
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 Agency 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.

I wish to emphasise that the public interest test does not give me authority to act as an alternative dispute mechanism with respect to complaints about actions of public bodies.

I cannot identify a public interest which would override the Constitutional rights to privacy of the third parties to whom the information in the records relate. As regards section 37(5)(a), as mentioned earlier, the public interest in openness and transparency in how the HSE dealt with the applicant has been served to some extent by the release to him of some parts of the information in the records. I therefore find that the public interest in granting the request does not override the public interest in upholding the privacy rights of other individuals involved.

Accordingly, I find that section 37(1) of the Act applies to the withheld information in the records.

Having found section 37(1) to apply to the withheld information in the records, I do not find it necessary to consider the decision of the HSE on the basis of section 35(1).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse access in full and in part to records under section 37(1) of the FOI Act.

If it has not already done so, I direct the HSE to release to the applicant those records which it agreed to release during this review, subject to the redaction of any personal information of individuals other than the applicant.

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