Whether the HSE was justified in refusing access to medical records of the applicant under section 37 of the FOI Act

9 September 2020

Background

In a request dated 12 December 2019, the applicant sought access to all of her records held by two named medical centres for the period 1 January 2015 to the date of her request. It appears that following an exchange of correspondence, the request was refined to all medical records from 1 January 2015 to 18 December 2019 held by a named doctor in a named medical centre in relation to the applicant.

Following further exchanges of correspondence, the HSE issued a decision on 22 April 2019, in which it decided to part-grant the request, refusing access to certain records in whole or in part under section 37 of the FOI Act and on the ground that certain records, or parts of records, fell outside the scope of the applicant’s request. Following a request for an internal review, the HSE issued its internal review decision on 26 May 2020. It granted access to certain other records but refused access to some records or parts thereof solely under section 37, on the ground that they contained third party personal information, including joint personal information of the applicant and a third party/parties. On 25 June 2020, the applicant applied to this Office for a review of that decision.

During the course of this review, both parties were invited to make submissions in support of their respective positions. On 3 July 2020, this Office informed the HSE that the applicant’s application for review had been accepted and provided it with a copy of her application for review. On 10 August, this Office invited the HSE to make a focused submission in support of its position. The HSE was informed that it could respond to any arguments made by the applicant in her application if it wished to do so. The applicant was subsequently provided with details of the HSE’s submission as to its reasons for refusing access to certain records in whole or in part and was given an opportunity to respond, which she did, by email on 27 August 2020.

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 applicant and the HSE and to the communications between this Office and both the HSE and the applicant on the matter. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with the question of whether the HSE was justified in refusing 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.

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.

• This Office does not examine complaints about the manner in which public bodies conduct their business generally. In conducting this review, which has been conducted under section 22(2) of the FOI Act, I am confined to considering whether the HSE was justified in refusing access to the records concerned under the provisions of the 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.

• It is important to note that the release of a record under the FOI Act is regarded, in effect, as disclosure to the world at large. This is because the Act places no restrictions on the type or extent of the subsequent use to which a record released under the Act may be put.

• 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. However, insofar as the Commissioner's position on granting partial access to records is concerned, he 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 occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.

• 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 the Commissioner gives notice of his decision and of the reasons for his 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.

• The applicant also contended that this Office’s procedures for conducting a review under section 22 are not in adherence with the principles of fair procedures and natural justice. She objects to the fact that this Office provided the HSE with a copy of her application for review, including any arguments raised therein. I am satisfied that this Office’s procedures comply with the principles of fair procedures. In order to progress a review, we put the FOI body involved on notice of arguments raised and offer it an opportunity to respond. In turn, as in this case, we inform applicants of any material issues arising over the course of the review and provide them with an opportunity to respond in kind.

Analysis and Findings

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).

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. Having examined the withheld information at issue, I am satisfied that it primarily comprises 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 such information would involve the disclosure of personal information relating to individuals other than the applicant. The withheld information also comprises a small amount of third party personal information.

In the circumstances, I find that section 37(1) applies to all of the withheld information and that it would not be practicable to release any additional parts of that information under section 18. 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 none of the circumstances identified at section 37(2) 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. and 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.”

From the applicant’s correspondence, I am satisfied that she has expressed, in essence, a private interest in release. While I can appreciate the importance the applicant attaches 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. Furthermore, it is not appropriate for me to direct the release in the public interest of third party personal information, effectively to the world at large, on the basis, for example, that the applicant takes issue with actions of the HSE.

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 of the FOI Act 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 give a right of access to an otherwise exempt record.

As the Commissioner said in his composite decision in cases  090261/090262/090263, "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement 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. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."

As the HSE has acknowledged, the FOI Act reflects that there is a general public interest in openness and accountability with respect to information held by public bodies, provided that it is consistent with the right to privacy. I also accept that there is a public interest, recognised by the FOI Act, in establishing that the HSE carries out its functions, including those in relation to the applicant, in a way that is consistent with the principles of natural and constitutional justice.

On the other hand, as the HSE has also acknowledged, 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.

Having regard to the nature of the withheld information, and in light of the fact that the release of a record under FOI is regarded, in effect, as release to the world at large, I find that the public interest in favour of granting access to the records does not outweigh the public interest that the right to privacy of the other individuals concerned should be upheld. I find, therefore, that the HSE was justified in refusing access to the withheld information under section 37(1).

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