Whether the HSA was justified in refusing access to certain information in an inspection report compiled following the occurrence of an accident involving the applicant, under sections 30, 32, 35 and 37 of the FOI Act

2 November 2020

Background

The applicant in this case was involved in a workplace accident, following which he initiated legal proceedings. On 5 November 2019, the applicant’s legal representatives submitted a written request on his behalf to the HSA for voluntary discovery of all statements taken and/or made, interview notes, exhibits, photographs and reports compiled arising out of the accident.

In response, the HSA said the documents would not be obtained under voluntary discovery and instead invited the applicant to submit a request under the FOI Act. It explained that if an inspector writes a report it will provide background to the accident, what led up to it, who he feels is culpable and his recommendations, and that it may also contain photographs (if any were taken). It suggested that the request should be for a copy of the report prepared by its investigating Inspector and a copy of the applicant’s statement.

On 26 November 2019, the legal representatives submitted a request under the FOI Act, and in doing so, they made specific reference to their letter of 5 November 2019. They said that while the Inspector’s report might suffice, that would not be clear until they had the report. They included a written authorisation from the applicant to be given all files, records, documents, etc. in the possession of the HSA relating to the applicant’s High Court case. For ease of reference, all further references to communications with the applicant in this case should be taken to include communications with his legal representatives.

On 13 January 2020, the HSA issued its decision on the request which it described as a request for a copy of the Inspector’s report into the accident. It decided to grant partial access to the report, with the redaction of certain information under sections 32, 35, 37 and 42 of the Act.

On 23 January 2020, the applicant sought an internal review of that decision. In its internal review decision of 14 February 2020, the HSA affirmed the decision to withhold certain parts of the report but varied the basis on which the information was withheld. It cited sections 30 (functions and negotiations of FOI bodies), 32 (law enforcement and public safety), 35 (confidential information), and 37 (personal information) as grounds for withholding the information. On 7 April 2020, the applicant sought a review by this Office of that decision.

During the review, both parties were invited to make submissions. The HSA made a submission on 25 May 2020, following which Mr Flood of this Office informed the applicant of the material details of that submission and afforded the applicant a further opportunity to make a submission. No such submission has been received to date. 

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 communications between the parties as described above and to the correspondence between this Office and both parties on the matter. I have also examined the record at issue in full. I have decided to conclude this review by way of a formal, binding decision. 

Scope of the Review

As outlined above, while the applicant originally sought all statements taken and/or made, interview notes, exhibits, photographs and reports compiled arising out of the accident, the HSA treated the request as a request for the Inspector’s report. However, I note that the report at issue includes details of interviews with various parties and photographs, as well as the Inspector’s findings and recommendations. I also note that the applicant did not raise any concerns about the scope of the request, either when seeking an internal review of the original decision or when applying to this Office for a review.

Accordingly, this review is concerned solely with the question of whether the HSA was justified in refusing access to certain parts of the Inspector’s report concerning the applicant’s accident on the basis that the withheld information is exempt from release under sections 30, 32, 35 and/or 37 of the FOI Act. 

Analysis and Findings

While the HSA cited four different exemptions in support of its decision to redact certain information, it claimed that all of the withheld information is exempt under section 37.

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This 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).

For the purposes of the Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by an FOI body on the understanding that it would be treated by it as confidential. The Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including (iii) information relating to the employment or employment history of the individual, and (xi) 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.

The information redacted from the record at issue comprises the names of various third parties other than the applicant and the details of the HSA’s Inspector’s description of his interviews with three different parties, i.e. the accounts given by the third parties of their recollection and/or knowledge of the accident and relevant background details.

Having examined the withheld information at issue, I am satisfied that it comprises either personal information relating to individuals other than the applicant or information relating to the applicant that is inextricably linked to personal information of other identifiable individuals, i.e. joint personal information. I am satisfied that the release of any or all of the redacted information would involve the disclosure of personal information relating to individuals other than the applicant. In the circumstances, I find that section 37(1) applies to all of the withheld information. However, that is not the end of the matter as section 37(1) is subject to the provisions of subsections (2) and (5).

Subsection (2) provides that subsection (1) does not apply in certain circumstances. Having examined the records, and having regard to the correspondence between this Office and the parties to this review, I am satisfied that the circumstances identified at section 37(2) do not arise in this case.

Subsection (5) provides that a request that would fall to be refused under subsection (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 subsection 5(b) does not apply in the circumstances of this case.

On the matter of where the public interest lies, I have had 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] 1 IR 729, [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. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to the consideration of public interest tests generally.

Furthermore, McDermott J., in his December 2016 judgment in the case of F.P. v The Information Commissioner [2014 No. 114 MCA] (“the F.P. case”), which was subsequently upheld by the Court of Appeal, said that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that “the ‘public interest’ in granting access is not to be determined on the basis of the appellant’s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.”

In his correspondence of 5 November 2019 with the HSA, the applicant stated that the information was sought to assist him in proving his case. I am satisfied that the applicant has expressed, in essence, a private interest in release. While I can appreciate the importance the applicant may attach to accessing the withheld information, the above judgments make clear that I cannot, in making this decision on the right of access under FOI, take into account the applicant’s private interests in the grant of access to the records withheld.

On the matter of the public interest factors that might be considered in support of a finding that the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, I am required to have regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors. While the comments of the Court were made in the context of the public interest test in section 36, which is concerned with the protection of commercially sensitive information, I consider them to be relevant to the consideration of public interest tests generally.

In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

Both 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). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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. It is also relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large given that the Act places no constraints on the uses to which the information contained in those records may be put.

In this case, the information at issue comprises the identities of certain third parties, including a number of parties with whom the HSA engaged during its investigation of the accident involving the applicant. It also comprises the Inspector’s description of the accounts given by the third parties of their recollection and/or knowledge of the accident and relevant background details.

It seems to me that there is a public interest in persons who may be affected by actions of the HSA being informed of the manner in which it carries out its functions relating to its investigation of workplace accidents and of the basis upon which it makes decisions on foot of such investigations. It also seems to me that the redacted version of the record that was released achieves these interests. I am aware of no public interest factors that might serve to support the public interest in the release of the specific redacted information that, on balance, outweighs the right to privacy of the individuals to whom the information relates.

Having regard to the nature of the withheld information, I find that the public interest in favour of granting access to the information does not, on balance, outweigh the public interest that the right to privacy of the individuals to whom the information relates should be upheld. I find, therefore, that the HSA was justified in refusing access to the withheld information under section 37(1).

Given my findings, it is not necessary for me to consider the other exemptions cited by the HSA in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSA’s decision to refuse access to certain parts of the report at issue on the basis that they are exempt from release under section 37 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.

 

Stephen Rafferty

Senior Investigator