Whether the HSE was justified in refusing to provide a statement of reasons to the applicant under section 10 of the FOI Act regarding why his parents were removed from his care and other matters

20 February 2020

Background

Section 10 of the FOI Act provides that a person who is affected by an act of an FOI body, and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of that act.

On 31 May 2019, the applicant applied under section 10 of the FOI for a statement of reasons as to why his parents were removed from his care, why he is not permitted to be considered their next of kin and why he is not permitted to take one parent out of the home in the same way as other family members. The HSE wrote to the applicant on 6 August 2019 saying that it did not consider it appropriate to process his application under section 10 because it was awaiting medical assessment reports relevant to wardship applications that were being undertaken. The FOI Act does not provide for a request not to be processed, or for a request to be refused, on this basis. However, I am satisfied that the HSE-�s letter essentially amounts to a deemed refusal of the applicant-�s section 10 application.

On 9 August 2019, the applicant sought an internal review of that deemed decision. The HSE-�s internal review decision of 30 August 2019 referred the applicant to the contents of a particular letter it had sent to him. On 9 September 2019, the applicant applied to this Office for a review of the HSE-�s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to above exchanges and correspondence between this Office, the HSE and the applicant. I have also had regard to the nature of the statement sought and the provisions of the FOI Act.

Scope of the Review

The scope of this review is whether the HSE-�s decision on the applicant-�s section 10 application was justified under the provisions of the FOI Act.

Findings

In conducting a review of a decision on a section 10 application, the Commissioner has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Neither does his remit extend to examining the appropriateness or otherwise of the particular act(s) for which statements of reasons are sought.

The Commissioner has found that there are many acts/decisions taken by public bodies where section 10 has no relevance. He takes the view that the Oireachtas could not have intended that public bodies should be required, on demand, to provide a written statement of reasons and findings on any material issues of fact made for the purposes of every single action of the public body and its officials.

In considering whether a person is entitled to a statement of reasons for an act of a public body, a key factor is whether the person has a material interest in a matter affected by the act of the FOI body i.e. if the act has the consequence or effect of conferring on the person a benefit (or withholding a benefit from them) without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member. In particular, section 10(2) of the FOI Act provides that section 10 does not require the giving to a person of information contained in a record which would fall to be refused as an exempt record.

Analysis

This Office-�s Investigator explained to the applicant that the HSE had referred him to a particular letter it had sent to him in order to help him understand why his parents were placed in nursing home care. However, for various factors that she listed, the HSE does not consider him entitled to a statement of reasons under the FOI Act.

I note that one of the factors concerned was that the placement of the applicant-�s parents in a nursing home affects not only the applicant but his parents and others. The HSE said that it was of the view that any records that would be relevant to the requested statement of reasons would be exempt under section 37 of the FOI Act and that section 10(2) of the FOI Act applies.

Section 37(1)

Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information. I have already issued a number of decisions on other applications for review made to this Office by the applicant, which arise from his FOI requests to the HSE for records relating to his parents and himself (OIC-56455-S1J4K0, OIC-56445-G8F5B6 and OIC-56433-P2W9W2). My decisions explain why I considered such records to contain third party personal information and/or joint personal information and why I thus found them to be exempt under section 37(1) of the FOI Act. They also explain why I do not consider the applicant entitled to the records under sections 37(2) and 37(5) of the FOI Act. Finally, they explain why I found that the applicant is not entitled to access to those parts of the records that relate to his parents and/or to his parents and himself under Regulations made under section 37(8) of the FOI Act (i.e. Regulations 5(b) and 6 of Statutory Instrument (S.I.) No. 218 of 2016). These Regulations provide for the grant of access to a parent or guardian of records relating to persons who are incapable of exercising their rights under the FOI Act and where this is in the best interests of the incapacitated person(s). In particular, I accepted the HSE-�s position that the applicant is not his parents-� guardian.

I am satisfied that the information that would fall to be provided to the applicant in response to his section 10 application would relate to his parents and other individuals. I am satisfied that this would be third party personal information and/or joint personal information that is exempt under section 37(1) of the FOI Act. I am also satisfied that the applicant would have no entitlement to the information concerned under sections 37(2), (5) and (8) of the FOI Act and I find that section 10(2) applies.

I also note that Regulations 6 and 7 of S.I. No. 53 of 2017 (which are also Regulations made further to the provisions of section 37(8) of the FOI Act) provide for the provision of a statement of reasons to a parent or guardian of records relating to persons who are incapable of exercising their rights under the FOI Act where this is in the best interests of the incapacitated persons. Given that I accepted in the decisions listed above that the applicant is not his parents-� guardian, I find accordingly that he is not entitled to a statement of reasons further to the provisions of Regulations 6 and 7 of S.I. No. 53 of 2017.

In the circumstances, there is no need for me to consider the applicant-�s section 10 application further. I will say, however, that I do not consider matters for which a statement of reasons is being sought such as why the applicant is not considered to be his parents-� next of kin, and why he is not permitted to take one of his parents out of the home in the same way as other family members to be -�acts-� for the purpose of section 10 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE-�s refusal to provide the applicant with a statement of reasons further to the provisions of section 10(2) of the FOI Act and also on the basis that the applicant is not entitled to a statement of reasons further to the provisions of Regulations 6 and 7 of S.I. No. 53 of 2017.

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