Whether the HSE was justified in refusing access to a copy of a complaint it received about the applicant under sections 30, 35 and 37 of the FOI Act

17 August 2020

Background

On 18 April 2020, the applicant, who is employed by a HSE Funded Service provider, sought access to a copy of a complaint the HSE received about her. On 6 May 2020, the HSE refused the request under section 35(1)(a) of the FOI Act. On 15 May 2020, the applicant sought an internal review of that decision, following which the HSE affirmed its original decision to refuse the request but on the basis that both sections 35(1) and 37(1) applied.  The applicant sought a review by this Office of the HSE’s decision on 31 July 2020.

I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the HSE and the applicant as outlined above and to correspondence between this Office and both the HSE and the applicant on the matter. I have also had regard to the content of the record at issue.

Scope of Review

This review is solely concerned with whether the HSE was justified in refusing access to a record of a complaint concerning the applicant under sections 35 and/or 37 of the FOI Act.

Preliminary Matters

In her correspondence with this Office, the applicant expressed concerns about the manner in which the HSE dealt with the complaint. It is important to note that this Office has no role in examining the administrative actions of the HSE in the performance of its functions or in examining the appropriateness of its complaints process and procedures. Furthermore, this Office cannot have regard to the applicant's motives for seeking access to the record at issue, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the record where the Act requires a consideration of the public interest.

I should also explain the approach this Office takes to the granting of access to parts of records. Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent.

Analysis and Findings

The HSE refused access to the record at issue under sections 35 and 37 of the FOI Act, which are concerned with the protection of confidential information and third party personal information respectively. In a submission to this Office, it also cited section 30(1)(a) (prejudice to investigations) as a ground for refusal. As I consider section 37 to be of most relevance, I will examine the applicability of that exemption first.

Section 37(1) 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).

Section 2 of the FOI Act defines the term “personal information” as information about an identifiable individual that either (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 an FOI body on the understanding that it would be treated by the body as confidential.

The record at issue is described by the HSE as a referral received by one of its staff members by “the Confidential Recipient”. It said the confidential recipient is an independent person appointed by the HSE to receive concerns and allegations of abuse, negligence, mistreatment, or poor care practices in the HSE or HSE funded residential care facilities in good faith from patients, service users, families, other concerned individuals and staff members. It said the confidential recipient receives all concerns or allegations of abuse in confidence. It said there is no obligation on the confidential recipient to disclose the source of the concern or allegations in requesting an investigation of the matter.

Having carefully examined the relevant record, while its release would involve the release of information relating to the applicant, I am satisfied that it would also involve the disclosure of personal information relating to other individuals, including the complainant. I find that the information in the record can reasonably be described as joint personal information concerning the applicant and other individuals, including the complainant. Accordingly, I find that section 37(1) applies to the record in question.

Section 37(2) sets out certain circumstances in which section 37(1) does not apply.  I am satisfied that none of the circumstances identified at Section 37(2) arise in this case. Furthermore, section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(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.  In assessing whether section 37(5)(b) would apply in this case, it would need to be shown that to grant the record in question would benefit the individual to whom it relates.  The HSE do not consider this to be the case and I am also of the same view and find therefore that section 37(5)(b) does not apply. 

On the matter of whether section 37(5)(a) applies the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates.  In considering 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] 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 acknowledges that there is a public interest in promoting the transparency and accountability of public bodies in the manner in which they perform their functions. However, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy).  It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution.  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.

In its submission to this Office, the HSE said it recognises the public interest in ensuring the openness and accountability of public bodies in performing their functions. It said the applicant was verbally provided with information regarding the detail of the concerns without revealing identifiable information by the Safeguarding Team. It said the complaint was examined in accordance with safeguarding processes and closed following preliminary assessment and that the applicant was provided with this information.

It seems to me that the public interest in enhancing the transparency and accountability of the HSE has been served to some extent by the information provided to the applicant concerning the complaint. The question I must consider, therefore, is whether the public interest in further enhancing that transparency and accountability outweighs, on balance, the significant public interest protecting the privacy rights of the third party concerned.  In my view, it does not. The disclosure of the record would not, in my view, enhance the transparency or accountability of the HSE in respect of its dealings with the applicant to any great extent. I find, therefore, that section 37(5)(a) does not apply.

In conclusion, therefore, I find that the HSE was justified in its decision to refuse access to the record sought under section 37(1) of the FOI Act.  Given my findings regarding section 37, it is not necessary for me to consider the applicability of sections 30 or 35 in this case.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the HSE to refuse access to the record at issue 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