Whether the HSE was justified in refusing access to information in a report relating to the applicant-�s son under sections 15(1)(i) and 37 of the FOI Act

14 February 2020

Background

On 16 February 2019, the applicant made an FOI request to the HSE for a report of an assessment carried out by a named consultant in relation to her adult son. The HSE failed to issue a decision within the statutory time-frame. On 24 April 2019, the applicant applied for an internal review of the deemed refusal. The HSE issued decision letters on 13 and 15 May 2019. It refused access to the information under section 15(1)(i) of the FOI Act, on the ground that the report had already been released to the applicant and was available to her. On 15 May 2019, the applicant applied to this Office for a review. The HSE then confirmed to this Office that the applicant had not been provided with a full copy of the report. Therefore, on 14 June 2019 this Office issued a decision to annul the HSE-�s decision and directed it to make a fresh decision.

This review concerns the HSE-�s fresh decision in the matter. On 22 July 2019, the HSE issued a decision in which it refused access to the majority of the report under section 37 of the FOI Act and the remainder under section 15(1)(i) of the FOI Act. On 8 August 2019, the applicant sought an internal review decision. On 28 August 2019, the HSE issued its internal review decision, in which it varied its original decision. It granted partial access to the report and refused access to the remaining information under sections 15(1)(i) and 37 of the FOI Act.  On 3 September 2019, the applicant applied to this Office for a review in respect of the withheld information. 

In conducting my review, I have had regard to the correspondence between the HSE and the applicant as described above, as well to correspondence between this Office and the HSE. I have also had regard to the contents of the record at issue and the provisions of the FOI Act. 

Scope of the Review

At internal review stage, the HSE released a redacted version of the report to the applicant. In her application for review, the applicant says that in 2016 she received a report about her son of an identical nature, produced by the same consultant. She says that the record under review is an extension of that earlier report and should be released in the same manner. However, I must decide this case on the basis of the remaining information in the redacted report and apply the provisions of the FOI Act to it. My review is solely concerned with whether the HSE was justified in refusing access to the withheld information under sections 15(1)(i) and 37 of the FOI Act.

Preliminary Issues

Before considering the exemptions claimed, I wish to note the following. First, the applicant has expressed frustration with the inconsistencies in the HSE-�s approach to this case. As outlined earlier, the HSE initially refused access to the whole report under section 15(1)(i) and the case was remitted for a fresh decision. I therefore understand the applicant-�s frustration with the HSE-�s handling of her FOI request. However, my role is confined to deciding the case before me, as set out above.

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. Thirdly, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach. Fourthly, with certain limited exceptions (e.g. sections 37(2) and 37(8), which I consider below), 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. 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

Section 15(1)(i) -� Refusal on administrative grounds

Section 15(1)(i)(i) of the FOI Act allows an FOI body to refuse to grant a request where the request relates to records already released to the same or a previous requester, where the records are available to the requester concerned. Section 2 of the FOI Act defines -�requester-� as a person who makes an FOI request. On 16 April 2019, the HSE provided the applicant-�s daughter with pages 7-9 of the report (except for two paragraphs) by email. It seems to me that the purpose of section 15(1)(i) of the FOI Act is to allow an FOI body to refuse a request where it has already released the record the subject of the request and it is available to the requester. Given that only a small part of the report was given to the applicant-�s daughter in what appears to be a release outside of FOI or other access regime, I do not consider that section 15(1)(i) applies in the circumstances. I find that the HSE was not justified in refusing access to these pages under section 15(1)(i). The HSE also claims that this information is exempt under section 37. I therefore consider it below, together with the rest of the withheld information.

Section 37 -� Personal Information

Sections 37(1) and (7)

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. These categories 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 (viii) information relating to the age (etc.) of the individual.

Section 37(7) provides that access to a record which relates to the requester shall be refused if access to the record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to people other than the requester.

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, the exclusion at Paragraph I does not exclude all information relating to staff members. It is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the position held while carrying out his or her official functions. It does not deprive public servants of the right to privacy generally.

The record under review is about the applicant-�s adult son. The majority of it comprises information relating to the age, medical and psychological history of the applicant-�s son, as well as views or opinions about him. Although it contains comments about related matters such as medical services, having regard to section 18 and the fact that those comments are made in the context of the applicant-�s son, I consider it appropriate to deal with the information as a whole. The record also contains pieces of information relating to the employment history of third parties, who are staff or consultants of FOI bodies. Having regard to the content of that information, I do not believe that it is captured by the exclusion in Paragraph I of section 2 of the FOI Act. I also consider that it is held by the HSE on the understanding that it will be treated as confidential. In summary, I am satisfied that section 37(1) applies to the withheld information. This finding is subject to other provisions of section 37, which I examine below.

I note that one paragraph, as well as containing information relating to the applicant-�s son and about a doctor, contains references to the applicant. In theory, one could extract certain words or phrases from that paragraph which relate solely to the applicant. I have considered whether this would be practicable in the circumstances. However, those words or phrases appear in the context of information relating to third parties. Having regard to section 18 of the FOI Act, I conclude that to provide a redacted copy of the record would be to provide a misleading record. I therefore find that section 37(1) applies to this paragraph also.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. Regarding section 37(2)(b), I have considered the fact that a form from February 2019 is signed by the applicant-�s son and states that he gives consent for his mother to seek his medical records on his behalf. Where a consent is provided to the FOI body, subsection (2) provides that the FOI body must ensure that the consent of the individual is established to its satisfaction before the request is granted. The HSE obtained a consultant-�s opinion on the consent form, as a result of which it concluded that it was not satisfied that the consent was valid or informed. The applicant disputes the HSE-�s position and says that the HSE cannot say that the consent was not valid. However, I believe that it is appropriate for me to give weight to the fact that the HSE obtained a consultant-�s opinion on the matter and was not satisfied that the applicant-�s consent was valid or informed. In the HSE-�s view, there is no evidence that the applicant-�s son is unable to exercise his own right to access his personal information. This is dealt with further below under section 37(8). I consider that this position is not incompatible with that taken on the consent issue. In the circumstances, I am satisfied that section 37(2)(b) does not apply.

I am satisfied that none of the circumstances in section 37(2) apply to the records. That is to say: (a) it 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 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) - 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.

In relation to the issue of the public interest, it is important to have 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 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. I must also bear in mind that release under FOI is effectively release to the world at large. The applicant says that her son-�s Constitutional right to privacy is not an issue, as he has consented to release of the information. She says that therefore the public interest in her access to the information and the transparency of public bodies far outweighs the public interest to the right to privacy. I cannot accept these contentions. The withheld information comprises the personal information of the applicant-�s adult son and other individuals. I believe that the applicant-�s interest in access to the information is more properly characterised as a private rather than a public interest. Moreover, as noted above, I have found that section 37(2)(b) does not apply. In the circumstances, I am not satisfied that the public interest in granting the request outweighs the right to privacy of the individuals other than the applicant. I find that section 37(5)(a) does not apply.

Regarding section 37(2)(b), the applicant does not explicitly argue that releasing the records would benefit the individual to whom the information relates. She says that the withheld information must be relevant to her son-�s medical history. It may be implicit in this claim that she believes that its release would benefit her son. However, I do not see how releasing the information to the applicant (and effectively the world at large) would benefit her son or the other third parties. I find that section 37(5)(b) does not apply in the circumstances. I should say that while I do not consider it appropriate to recite the details of the background to this case, as provided to me by the parties, I have reached my conclusion on sections 37(5)(a) and (b) in all the circumstances.

Section 37(8)

Section 37(8) of the FOI Act provides that notwithstanding subsection (1), the Minister may make regulations for the grant of an FOI request where the individual to whom the record relates belongs to a class specified in the Regulations and the requester is the parent or guardian of the individual to whom the record relates. Regulation 5(b) of the Regulations provides for a right of access by parents or guardians to personal information of individuals who have attained full age and at the time of the request, have or are subject to, a psychiatric condition, mental incapacity or severe physical disability, the incidence and nature of which are certified by a registered medical practitioner, and by reason of that condition, incapacity or disability, are incapable of exercising their rights under the FOI Act.

In her internal review request, the applicant says that the HSE should have applied section 37(8) of the FOI Act. The HSE says that there is no evidence before it that the applicant-�s son is incapable of exercising his rights under the FOI Act. It says that it is evident from the report itself that he can make decisions in relation to his case. The HSE says that the applicant-�s son can express his views, likes and dislikes and if necessary, could avail of his Guardian ad Litem. I believe that it is appropriate for me to give weight to the HSE-�s assessment of the capacity of the applicant-�s son. In the circumstances, I do not have a basis upon which to find that Regulation 5(b) applies to the applicant-�s son so as to afford the applicant a potential right of access to her adult son-�s personal information.

In conclusion, I find that the HSE was justified in refusing access to the withheld information under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the HSE-�s decision under section 37(1) of the FOI Act.

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.

Elizabeth Dolan

Senior Investigator