Whether the HSE was justified in refusing access to parts of some records on the grounds that they contained the personal information of persons other than the applicant and were exempt under sections 35 and 37 of the FOI Act

18 June 2020

Background

In a request dated 21 November 2019, the applicant sought access to records relating to a hospital admission on a certain date.  In a decision dated 27 January 2020 the HSE part granted the applicant’s request.  It redacted a small amount of information in the 113 pages identified on the basis of sections 35 and 37 of the FOI Act and released the rest of the records to the applicant.  On 9 March 2020, 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.  In carrying out my review, I have had regard to the submissions made by the HSE and the applicant’s comments in her application for review and during subsequent telephone conversations.  I have also examined the records at issue and had regard to their contents.  I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

In her application to this Office, the applicant stated that the point in the HSE’s decision about third parties was not valid in her case.  She sought full, un-redacted access to all records. 

In the course of the review, the investigator in this case raised a point with the HSE about an exclusion to the definition of personal information.  This exclusion relates to references to individuals who are members of staff of an FOI body and are acting in the performance of their functions.  The HSE agreed to release any information that referred to such individuals and sent coies of the  affected  records to the applicant on foot of this. 

The only remaining information within the scope of the review refers to individuals other than the applicant.  In total, eight of the 113 pages identified contain some redactions.  This review is therefore concerned with whether or not the HSE was justified in refusing access to the withheld parts of those eight records under sections 35 and 37 of the FOI Act. 

Preliminary Matters

Before considering the exemptions claimed, I wish to make the following points.  First, it should be noted that section 13(4) of the FOI Act provides that any reason that a requester gives for his or her request shall be disregarded.  This means that an applicant's motivation cannot be considered except insofar as it might be relevant to the consideration of public interest provisions. I also note that the remit of this Office does not extend to examining the manner in which a public body performs its functions generally, to investigating complaints against a public body, or to acting as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

A related point to make is that, with certain limited exceptions, 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.

Analysis and Findings

The records in this case predominantly relate to the applicant; however, they do contain some small references to other individuals.  These references were redacted by the HSE on the basis of section 35 (confidentiality) and section 37 (personal information).  I consider section 37 to be the most relevant in this instance and so I will address that first. 

Section 37 - Personal information

Sections 37(1) and (7)

Section 37(1), subject to other provisions of section 37, is a mandatory exemption.  It requires the refusal of access to a record containing the personal information of a party other than the person(s) seeking the record.  Section 37(7), also subject to other provisions of section 37, provides for the refusal of a record that contains the personal information of the person making the FOI request and that of another party or parties (joint personal information). 

"Personal information" is defined at section 2 of the FOI Act as:

"information about an identifiable individual that-

(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 a public body on the understanding that it would be treated by it as confidential."

Section 2 goes on to list 14 examples of personal information, including "(xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual” and “(xiv) the views or opinions of another person about the individual”.   

In the circumstances, I am satisfied that the redacted portions of the records contain the joint personal information of the applicant and other identifiable individuals.  Section 37(1) and/or (7) of the FOI Act therefore applies.  This is subject to section 37(2) and 37(5), which I will consider below. 

Section 37(2)

I am satisfied that none of the circumstances in section 37(2) apply to the record.  That is to say, (a) the redacted information contained in the record 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 obiter 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.

Section 25(3) requires that I take all reasonable precautions to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt.  This means that the extent to which I can describe the contents of the records is limited.  However, I am satisfied that the redacted information is sensitive information as it relates principally to a psychiatric setting.  I consider this to be highly sensitive information, which is extremely personal to both the applicant and the third parties concerned.  I cannot identify a public interest which would override the Constitutional rights to privacy of the other third parties to whom this information relates.  Further, it could be argued that the public interest in ensuring the openness and accountability of public bodies has been largely satisfied by the release of the vast majority of the records to the applicant.  I therefore find that section 37(5)(a) does not apply in the circumstances.

It has not been argued that releasing the remaining records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances.

Given my finding, I see no need to consider section 35 of the FOI Act. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the HSE's decision to refuse access to parts of the records on the basis that they contain the joint personal information of the applicant and other individuals.  I find that section 37 of the FOI Act applies. 

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