Whether the HSE was justified in refusing access to certain medical records of the applicant under sections 35 and 37 of the FOI Act

13 November 2020

Background

In a request dated 12 December 2019, the applicant sought access to copies of all her records held by a named hospital dating from 1 January 2015 to the date of the request. On 13 December 2019, she clarified that her request pertained to mental health services only. Also on 13 December 2019, she submitted two further requests: one for all of her records for the same time period held by a particular primary care centre and another for several letters delivered in person by her to a named doctor in that centre.

The HSE determined that all of the relevant records were available from one file source in the Roscommon Mental Health Service and therefore decided to process the three requests as one. In a decision dated 9 April 2020, the HSE part-granted the request, redacting certain details from the relevant records on the basis that the details were exempt under sections 35 and 37 of the FOI Act. Following a request for internal review, the HSE varied its decision on 11 June 2020. It released certain additional records to the applicant but refused access to certain details in the relevant records under sections 35 (information obtained in confidence) and 37 (personal information). On 24 June 2020, the applicant sought a review by this Office of that 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 communications between the parties on the matter and to the communications between this Office and each party in relation to this review. I have also examined the full contents of the records at issue.

During the course of this review, the parties were invited to make submissions to this Office in support of their respective positions. The applicant was further provided with an opportunity to comment on the details of a submission received from the HSE. However, she has not responded to date. Accordingly, I have decided to bring this review to a close by way of a formal, binding decision.

Scope of the Review

Following engagements between this Office and the HSE during the course of the review, the HSE released a small number of additional records to the applicant. Accordingly, this review is concerned solely with the question of whether the HSE was justified in refusing access to the remaining relevant records under sections 35 and 37 of the Act.

Preliminary Matters

In her correspondence with this Office, the applicant made wide-ranging arguments concerning the review and the manner in which the HSE processed her request. Therefore, before I address the substantive issues arising, I would like to make a number of important preliminary comments.

• First, a decision by this Office is by way of a hearing de novo in the light of the facts and circumstances applying at the date of the review by this Office. It is therefore appropriate that I consider any new claims made subsequent to the HSE’s decision on the request.

• This Office does not examine complaints about the manner in which public bodies conduct their business generally. In conducting this review, I am confined to considering whether the HSE was justified in refusing access to the records concerned under the provisions of the FOI Act.

• Section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that a requester gives for his or her request shall be disregarded. This means that this Office 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.

• Section 18(1) of the Act 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 public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). As mentioned, the HSE granted partial access to some records by way of release in redacted form. Nevertheless, this Office takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences, or parts of sentences, or occasional paragraphs from records, for the purpose of granting access to those particular sentences or paragraphs.

• Finally, I note that the applicant has indicated that she wants all arguments and points presented by her to this Office to be published in full within the body of this decision. It is not our policy to do so and I do not propose to make such a departure in this decision. All that is required is that this Office gives reasons for its decision. However, that requirement is also subject to the provisions of section 25(3), which require this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions. Furthermore, I can confirm that I have had regard to the full details of the applicant’s submissions, regardless of whether or not they are included in full in this decision.

Analysis and Findings

While the HSE has redacted information under sections 35 and 37, the latter appears to me to be of most relevance in this case. Therefore, I will consider its application first. The records at issue comprise a variety of clinical records held by the HSE regarding the applicant. 

Section 37 – Personal Information

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).

Personal information is defined in 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 their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including “(i) information relating to the educational, medical, psychiatric or psychological history of the individual … (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”.

As mentioned above, section 25(3) requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions. It is important to note that this means that I am limited in the degree of description I can provide of the records at issue and of my reasoning in this case. Nevertheless, I am satisfied that I may state that the redacted information includes the names of various parties other than the applicant, the views of certain third parties in relation to other individuals, as well as personal details of third parties which may be said also to relate to the applicant.

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 whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, 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.

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors. 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.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

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.

The applicant has also made much of the fact that by withholding information relating to her, she is being denied the opportunity to avail of her right to seek to have any such information that is incomplete, incorrect, or misleading amended under section 9 of the Act. However, while section 9 may be regarded as recognising a public interest in the personal information held by public bodies being accurate, complete, and not misleading, it does not, of itself, provide a right of access to an otherwise exempt record.

I accept that there is a public interest in individuals being aware of the information that public bodies hold on them and how they use that information. There is also a public interest in individuals being informed as to the basis on which decisions are taken by the HSE regarding their care and treatment. It seems to me that the HSE sought to strike a balance in this case by releasing as much information as possible relating to the applicant while simultaneously seeking to protect the privacy rights of the third parties concerned.

Having carefully considered this matter, and given the strong public interest in protecting the right to privacy, I find no relevant public interest in granting access to the remaining withheld information that, on balance, outweighs the right to privacy of the individuals to whom the information in question relates. Accordingly, I find that the HSE 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 application of section 35 to any of the information at issue.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision to refuse access to certain records or parts of records relating to the applicant 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