Whether the HSE was justified in refusing to grant access to CCTV footage of the applicant’s late husband in a named hospital on the ground that it was exempt under sections 32(1)(a) and 37(1) of the FOI Act

20 August 2020

Background

In Case OIC-57574, the applicant made a request to the HSE on 5 April 2019, through her legal representatives, for access to certain records relating to her late husband, including Hospital CCTV footage of him at the hospital. According to the applicant, her husband tragically died in March 2019 following an incident at the hospital that involved An Garda Síochána (AGS).

The applicant has had legal representation from the date she first submitted her FOI request to the HSE. Accordingly, all references to engagements with the applicant in this decision should be taken to include engagements with her legal representatives.

The HSE refused access to the CCTV footage under sections 32(1)(a)(i) and 37 of the FOI Act. On 2 July 2019, the applicant sought an internal review of the HSE’s refusal of the CCTV footage. On 24 July 2019 the HSE affirmed its original decision, refusing access to the CCTV footage under section 32(1)(a)(i) on the basis that release of the record would jeopardise a GSOC investigation into the involvement of AGS in the incident. On 2 October 2019, the applicant sought a review by this Office of that decision. During the course of this review, the HSE argued that the CCTV footage was exempt under sections 32(1)(a)(i) and 37.

In a decision dated 9 January 2020, my Office affirmed the HSE's decision to refuse the applicant’s request for a copy of the CCTV footage of her late husband at the hospital under section 37(1) of the Act. The applicant appealed my Office’s decision to the High Court under section 24 of the FOI Act.  The case was subsequently remitted on consent by order of the High Court dated 2 March 2020.

Accordingly, the review was reopened under a new reference number for the purpose of making a fresh determination on the question of whether the HSE was justified in refusing access to the CCTV footage at issue. 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 correspondence between the applicant and the HSE relating to the FOI request and to the submissions made by the HSE and the applicant to my Office in the course of both reviews. I have also had regard to the contents of the CCTV footage at issue.

Scope of Review

In its original decision on the request, the HSE refused access to the CCTV footage at issue under sections 32(1)(a)(i) and 37(1) of the FOI Act. In an internal review decision dated 24 July 2019, the internal reviewer affirmed the refusal of the footage under section 32(1)(a)(i) and stated that as she considered the decision to refuse the request pursuant to the law enforcement provision to be so overwhelming, she did not propose to deal with the original decision in respect of section 37 of the 2014 Act. However, in its submission of 25 November 2019 during the first review, the HSE argued that while the internal review decision focused primarily on s.32(1)(a)(i) “owing to the clear justification for refusal under that section, it simultaneously affirmed the Initial Decision which in turn relied on s.37.”

The applicant argued that the HSE affirmed the refusal of the CCTV footage exclusively on the ground that section 32 applied.

For the avoidance of doubt, I should say that I deem it appropriate to consider the HSE’s claim for exemption of the CCTV footage under section 37, notwithstanding the confusion that arose as a result of the language of the internal review decision. A review by my Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision. This approach has been endorsed by the Courts. The HSE’s position is that the footage is exempt from release under sections 32(1)(a)(i) and 37(1) of the FOI Act.

Accordingly, my review is concerned with whether the HSE was justified in refusing to grant access to the CCTV footage sought, under sections 32(1)(a) and/or 37(1) of the FOI Act.

Preliminary Matters

Before setting out my analysis and findings on this review, I would first like to offer my condolences to the applicant on the death of her husband. I also wish to note the following points before considering the exemptions claimed.

First, the applicant has provided this Office with a detailed background to her FOI request and her reasons for seeking access to the CCTV footage. Section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that I cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest. I will address this point concerning the public interest in more detail below.

Secondly, 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. In the circumstances, I consider it appropriate to regard any release of the record at issue as being effectively, or at least potentially, to the world at large.

Thirdly, 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. I take 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, I am 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.

Finally, I note that the applicant has expressed concerns as to the fairness of the procedures adopted my Office in the course of the review due to the fact that the submissions of the parties were not exchanged in this case. The Courts have previously considered the fairness of my Office’s procedures in the context of our treatment of submissions. In The National Maternity Hospital v the Information Commissioner [2007] 3 IR 643, Quirke J stated: "I know of no principle of natural or constitutional law or justice which confers upon parties who make submissions to a decision-making body the right to respond to the submissions made by every other party who participates in the process. The review undertaken by the Commissioner was a statutory process which expressly envisaged and permitted the adoption of informal procedures." The Courts endorsed this finding most recently in Grange v the Information Commissioner [2018] IEHC 108. I am satisfied that my Office notified the parties of all material issues of relevance to my decision in this case and gave them the opportunity to make submissions. As will be seen below, I have taken those submissions into account in reaching my conclusion.

Analysis and Findings

The record at issue in this case consists of approximately four hours of footage taken from a number of individual cameras located around the hospital. The deceased is depicted in and around the hospital and its grounds, and appears in much, though not all, of the footage. The footage depicts numerous members of the public, including patients and visitors to the hospital, moving in and out of frame of the CCTV cameras. A significant number of HSE staff also appear in the footage, as do two members of An Garda Síochána. The HSE stated that the applicant herself also appears in the footage.

From my examination of the record, it would appear to contain the following types of information:

• footage solely of the deceased,
• footage of the deceased along with HSE staff/service providers,
• footage of the deceased along with the applicant and one or more other individuals,
• footage of the deceased along with one or more individuals other than the applicant or HSE staff/service providers, and
• footage of individuals other than the applicant or the deceased.

The individuals other than the applicant, the deceased or staff are members of the public who were patients/and or visitors to the hospital. They appear intermittently throughout the footage, on occasion for periods of time.

While the HSE argue that the record is exempt under sections 32(1)(a) and 37(1), I will consider the applicability of section 37(1) first as I consider it to be of most relevance in this case.

Section 37(1) – Personal Information

The applicant contends that, applying case law in Sheedy v the Information Commissioner [2005] IESC 35 and National Maternity Hospital v the Information Commissioner [2007] IEHC 113, and the general principles of the FOI legislation to this case, she has a prima facie right to be furnished with the CCTV footage. She argues that that it is for the HSE in the first instance put forward a case that it is entitled, pursuant to statutory exceptions or otherwise by operation of law, to withhold disclosure of the CCTV.

Section 11(1) of the FOI Act 2014 provides for a right of access to any record held by a public body. In Sheedy, the Supreme Court described the equivalent provision of the 1997 Act as giving “effect to the general principle thus proclaimed of public access to documents to the greatest extent possible consistent with the public interest and the right to privacy” (my emphasis).

It is also important to note that section 11(1) which provides for the right of access is, itself, subject to the FOI Act. Section 11(7) of the FOI Act provides that nothing in section 11 shall be construed as applying the right of access to an exempt record.

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. Section 37(1) does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).

The FOI Act defines 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, including “(i) information relating to the educational, medical, psychiatric or psychological history of the individual”. Information which comes within any of the fourteen categories specified at paragraphs (i) to (xiv) is personal information - there is no requirement for it to also meet the requirements of paragraphs (a) or (b).

Certain information is excluded from the definition. Paragraph I of section 2 provides that it does not include the name of a staff member of a public body or information relating to the position held or its functions or the terms upon and subject to which the individual occupies or occupied that position. Paragraph II provides a similar exclusion for service providers.

Submissions

The HSE says that the CCTV footage contains information relating to a significant number of readily identifiable individuals other than the deceased husband of the applicant. It submits that the record contains joint personal information and that on balance, the privacy rights of third parties considerably outweigh any public interest in disclosure. The HSE submits that people attending hospital have a legitimate expectation of confidentiality. It says that notices in public places informed visitors that CCTV was in operation, but this does not equate to notification that footage would be disseminated to the world at large. It says that people attending hospital would understand that CCTV footage might be retained e.g. for security purposes, but not that it would be published to parties unconnected to the hospital authorities.

The applicant says that she has already been permitted to view the CCTV footage and accordingly, the contention that disclosure would affect privacy rights is so belatedly made as to be effectively meaningless. She submits that the record does not reveal inherently private information as it depicts public areas of a hospital with prominent notices alerting people to the presence of CCTV.

The applicant further submits that images of hospital staff going about their work or members of the public coming and going from the hospital are not inherently private. She submits that staff members and members of the public using public areas of the hospital where prominent signs disclosing CCTV footage are displayed must be taken to have consented to their image being captured on the said footage by their presence in the said areas and, in the case of employees, by the terms of their contract of employment. She also submits that footage of staff members engaged in work is not covered by section 37. Moreover, the applicant submits that there is no evidence of the HSE having contacted people on the CCTV to seek their consent to disclosure.

In relation to the public interest, the applicant submits that vindicating the right to life and holding agents of the State to account is overwhelming. The applicant says that access to the footage is fundamental to the proper investigation of her husband’s death and essential to establish whether actionable acts or omissions occurred at the time. She submits that the public interest in the effective investigation of the death of a person so proximate in time to being in the care of an arm of the State cannot be greater. She submits it is protected as a component of the right to life which enjoys protection under the Constitution and imposed obligations on the State of a procedural and substantive nature pursuant to the case law of the European Court of Human Rights. She also submits that the public interest in transparency and accountability inevitably arises as an additional weighty consideration on the facts and circumstances of the case.

Analysis and Findings on section 37

Section 37(1)

As I have outlined above, disclosure of the footage would disclose information about individuals other than the applicant or her late husband. It would disclose information about staff members of the hospital and members of the public. Accordingly, the first question I must consider is whether the disclosure of such information would involve the disclosure of personal information relating to individuals other than the applicant or her late husband.

I am satisfied that the disclosure of the footage would, indeed, involve the disclosure of personal information relating to members of the public captured on the footage, namely patients and/or visitors to the hospital. I have also had regard to the fact that some footage comprises information concerning the medical condition and treatment of members of the public. While I accept that users of the relevant areas of the hospital may well be aware of the likelihood of their presence and movements being captured on CCTV footage, I do not accept that this means that they have implicitly consented to that information being disclosed, potentially to the world at large. I am satisfied that the users of such areas would have a reasonable expectation that such information would be treated by the hospital as confidential.

The position relating to staff members is more problematic. As I have noted above, the definition of personal information excludes the names of staff members or information relating to the positions held or the functions of those positions.

The exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion 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 particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally.

It seems to me that it would be impracticable for the HSE to be in a position to establish, in every instance where staff members are captured on the CCTV footage, whether or not they were engaged in the performance of their functions at those particular points in time. It is quite possible that some of the information captured of staff members did not involve those staff members engaging in the performance of their functions.

In any event, in light of my finding that the footage captures personal information relating to members of the public and that the disclosure of the record would involve the disclosure of such information, I find that section 37(1) applies.

I should add that the fact that the applicant attended the Garda Síochána Ombudsman Commission in August 2019 to view the CCTV footage does not mean that section 37(1) cannot apply. As I have explained above, the release of a record under FOI effectively amounts to disclosure to the world at large.

Section 37(2)

Section 37(2) sets out certain circumstances in which section 37(1) does not apply. Subsection (b) disapplies section 37(1) if the individual to whom the information relates consents to its disclosure to the requester. No such consent was given in this case by the individuals whose personal information would be disclosed by the release of the record. The applicant submits that there is no evidence of the HSE having contacted people on the CCTV to seek their consent to disclosure. Apart from the impracticability of doing so, subsection (b) places no such obligation on the HSE. I am satisfied that subsection (b) does not apply. I also find that none of the other subsections of section 37(2) apply.

Section 37(5)

Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where the public body considers, 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 benefit the person to whom the information relates. No evidence has been provided to my Office that the release of the record at issue would benefit the individuals whose personal information would be disclosed by its release. I find, therefore, that section 37(5)(b) does not apply.

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  (apart from the applicant and her late husband) whose personal information would be disclosed by the release of the record at issue.

The applicant submits that the footage is fundamental to the proper investigation of her husband’s death and that there is a public interest in the effective investigation of the death of a person so proximate in time to being in the care of an arm of the State. She also submits that there is a significant public interest in the enhancement of transparency based on the facts and circumstances arising.

As noted above, I am required to disregard the applicant's motives for seeking access to the record. Therefore, I can only take into account the purpose for which she seeks the information in so far as it reflects a true public interest factor in favour of release of the information, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.

The Long Title of the FOI Act reflects that there is a general public interest in openness and transparency with respect to information held by public bodies, provided that it is consistent with the right to privacy.  Moreover, section 11(3) provides that an FOI body, in performing any function under the FOI Act, must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs, and the need to strengthen the accountability and improve the quality of decision making of FOI bodies.

I believe that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. In this case, I accept that there is a strong public interest in the disclosure of information that would shed light on the manner in which the applicant’s late husband was treated at the hospital. However, it is not for me as Information Commissioner to determine the appropriateness or otherwise of that treatment or to determine that personal information should be provided to the applicant in the public interest under section 37(5)(a) of the FOI Act, as a means of remedying any suspected wrongdoing. I have no role in the determining what information is fundamental to the proper investigation of the death of the applicant’s husband. The question of whether the applicant should have access to information to pursue a remedy or some other form of redress is a matter for the Courts, which have been given exclusive power under the Constitution for the administration of justice.

The public interest balancing test in section 37 is unlike those public interest balancing tests to be found in a number of other exemptions where the question to be determined is whether the public interest would, on balance, be better served by granting than by refusing the request. The test in section 37(5) expressly requires me to determine whether the public interest outweighs, on balance, the privacy rights of the individuals to whom the personal information relates.

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. It is also noteworthy that, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. The right to privacy has also been recognised as an unenumerated right under the Constitution. Moreover, I note that the strong protection afforded to privacy rights under FOI is consistent with Article 8 of the European Convention on Human Rights.

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 applicant submits that the information at issue is not inherently private. Given the nature of the information and in circumstances where the release of the record is, in effect, release to the world at large, I disagree. For example, disclosure of the record would disclose that certain individuals attended the hospital as patients.

In my view, the public interest in enhancing the transparency and accountability of the HSE in this case in relation to its treatment of the applicant’s late husband does not, on balance, outweigh the privacy rights of the individuals whose personal information would be disclosed by the release of the information. In forming this view, it seems to me that the public interest in enhancing the transparency and accountability of the HSE has already been served to a significant extent in this case in light of the fact that the applicant has had an opportunity to view the CCTV footage. I do not believe that the public interest in further enhancing that transparency and accountability by the release of the record is sufficient to outweigh, on balance, the privacy rights of the individuals concerned. I find, therefore, that section 37(5)(a) does not apply.

Section 17(4) and section 18(1)

For the sake of completeness and given the nature of the record and the applicant’s submissions, I wish to address the question of whether the HSE should have released a redacted copy of the record, with the redaction of footage containing personal information relating to individuals other than the deceased and/or the applicant.

Section 2 of the Act defines “record” as including “a copy or part” of anything falling within the definition of a record. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the FOI body concerned considers appropriate, of the record with the exempt information removed. However, section 18(1) does not apply in relation to a record if the copy provided for thereby would be misleading.

I have considered whether it would be practicable to extract footage of the deceased from footage of members of the public but have concluded that it would not, as the footage captures members of the public intermittently throughout. In any event, it seems to me that the release of a redacted copy of the CCTV footage in this case would serve no useful purpose and would, in fact, be misleading as a representation of footage of the deceased’s time at the hospital.

I have also considered whether the HSE should have released a pixelated version of the record at issue in order to protect the identities of third parties. It is noteworthy that section 17(4) of the Act, which is concerned with the release of electronically held information contained in a number of records, requires a body to take reasonable steps to extract that information, but only in so far as those steps involve the use of any facility for search or extraction that existed on the date of the request and was used by the body in the ordinary course. In other words, the body is not required to extract the data if a facility for electronic extraction that it does not ordinarily use is needed in order to do so.

In its submission to this Office, the HSE stated that it does not have the necessary facilities required to pixelate the CCTV footage. It seems to me that this, of itself, is sufficient to find that section 17(4) does not apply in this case. I note, nevertheless, that the HSE sought a costs estimate from a forensic video analytics company in respect of the cost involved in pixelating the CCTV footage. While it was unable to obtain a definitive estimate, it stated that the total cost is expected to be at least in the region of thousands of euro given the number of cameras involved and the number of individuals captured in the footage. The HSE submitted that it was impractical and would require disproportionate expenditure of financial resources to pixelate the record.

The applicant says that it is not credible that the HSE would have no pixilation facilities, given the obligations on data processors under data protection legislation. Whether the applicant considers the HSE’s position to be compatible with its duties under data protection legislation does not decide the issue before me. At the date of the FOI request, the hospital concerned did not have the necessary facilities to extract the information. Section 17(4) of the FOI Act expressly refers to “the use of any facility for electronic search or extraction that existed on the date of the request and was used by the FOI body in the ordinary course”.

The fact that a body may be in a position to outsource the pixilation of the CCTV footage cannot, in my view, mean that the body has an existing facility for electronic extraction that is used by the body in the ordinary course. In all of the circumstances, I am satisfied that the HSE is not required to provide a redacted or pixelated version of the record sought in this case.

In conclusion, therefore, I find that the HSE was justified in refusing the applicant’s request for a copy of the footage of her late husband at the hospital under section 37(1) of the FOI Act. Having found that section 37(1) applies, it is not necessary for me to consider the exemption claimed under section 32(1)(a)(i).

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I affirm the HSE's decision to refuse the applicant’s request for a copy of the footage of her late husband at the hospital under section 37(1) of the 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.

 

Peter Tyndall

Information Commissioner