Whether Camphill was justified in refusing access to records relating to the applicant’s daughter, under sections 15(1)(c), 32 or 37

4 September 2020

Background

On 4 June 2020, the applicant submitted a request to Camphill, through his solicitors, for all personal information held in relation to his daughter, to include medical and patient records. On 22 June 2020, Camphill issued a decision wherein it refused the request under section 32(1) of the FOI Act. On 7 July 2020, the applicant sought an internal review of that decision. Camphill issued its internal review decision on 24 July 2020, in which it affirmed its decision to refuse the request but on the ground that the records sought were exempt under sections 15(1)(c), 32(1), 37(1), and 37(3) of the Act. On 5 August 2020, the applicant sought a review by this Office of Camphill's decision.

I have now completed my review in this case. In conducting my review, I have had regard to the correspondence between the applicant and Camphill as outlined above and to the correspondence between this Office and both parties on the matter.

Scope of this Review

The scope of this review is concerned solely with whether Camphill was justified in refusing the applicant’s request for records relating to his daughter under sections 15(1)(c), 32 and 37 of the FOI Act.

Analysis and Findings

Section 15(1)(c) of the FOI Act provides that an FOI body may refuse to grant a request where in the opinion of the head, granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of work (including disruption of work in a particular functional area) of the FOI body concerned.

Section 15(4) of the FOI Act provides that an FOI body shall not refuse a request pursuant to section 15(1)(c) unless it has assisted, or offered to assist, the requester in an effort to amend the request for re-submission so that it no longer falls within section 15(1)(c). As an FOI body cannot rely on section 15(1)(c) unless it has assisted, or offered to assist, the requester as required by section 15(4), this is the first issue which should be considered in any case in which an FOI body is relying on section 15(1)(c).

During the review, the investigator asked Camphill if it had offered the applicant assistance under section 15(4). In response, Camphill did not provide evidence of having offered any such assistance. Instead, it stated: “section 15 was a contributing factor in our decision to refuse, rather than us relying on it in reaching our decision.” It added that the primary factor in informing its decision was the fact that the documents are part of an ongoing Garda investigation and its concern around the circumstances of that investigation and that it was an error to include section 15 as a reason for refusal.

In essence, Camphill refused access to any of the records coming within the scope of the request under section 32(1) primarily because it considered the records to form part of an ongoing investigation by An Garda Síochána.

Section 32(1) of the Act provides for the discretionary refusal of a request if the FOI body considers that access to the records sought could reasonably be expected to prejudice or impair certain matters relating to law enforcement and public safety. It is what is commonly known as a harm-based exemption. For the exemption to apply, this Office expects the body to show how the release of the particular record or records sought could reasonably be expected to cause the harm identified by the body, i.e. what it is about the particular record or the particular information in the record which, if released, is expected to cause the harm envisaged and how or why is that harm expected to occur.

It seems to me that Camphill did not examine the contents of each record coming within the scope of the request in order to determine if each record should properly be refused under section 32(1), which is what the section requires. Instead, it appears that Camphill simply claimed a blanket exemption for the records on the ground that they formed part of the Garda investigation.

Camphill also cited section 37 in support of its refusal of the request. That section provides for the refusal of a request where the release of a record would involve the disclosure of personal information relating to an individual other than the requester. As with section 32, I would expect a body wishing to rely on that exemption to have considered the contents of each relevant record to determine if section 37 appropriately applies. It seems to me that it did not do so in this case. Indeed, Camphill’s initial reliance on section 15(1)(c) as a ground for refusing the request supports my view that it did not examine each record as the exemptions require.

In all of the circumstances, I find that Camphill has not properly considered the applicant’s request. I find that it was not justified in claiming blanket exemptions under section 32 and/or section 37 to all of the records without first having considered their contents. Furthermore, while I accept that it has since dropped its claim for exemption under section 15(1)(c), had it been necessary for me to consider that claim, I would have found that Camphill was not justified in refusing the request under section 15(1)(c), given its failure to offer assistance to the applicant under section 15(4).

Nevertheless, I do not consider it appropriate to simply annul Camphill’s decision and to direct the release of the records sought, for a number of reasons. Firstly, it appears that a substantial number of records fall to be considered. Indeed, Camphill provided this Office with over ten schedules of records and a list of folders during the course of the review. Section 15(1)(c) is an explicit acknowledgment of the fact that FOI bodies should not be required to undertake the processing of FOI requests where to do so would place an unreasonable burden on often limited resources.

Secondly, I fully accept that the vast majority of records at issue are likely to contain personal information relating to the applicant’s adult daughter who, I understand, has an intellectual disability. It would not be appropriate, in my view, to simply direct the release of such records without having appropriate regard to the consequences of such release on the privacy rights of the applicant’s daughter. Finally, I do not wish to prejudice Camphill’s right to properly consider the records at issue to determine if the release of any records might give rise to any of the harms set out in section 32(1).

In the circumstances, I am satisfied that the most appropriate course of action to take is to annul the decision of Camphill and to direct to it undertake a fresh decision making process on the request. In doing so, it may care to note the following matters.

Firstly, this decision should not be taken as meaning that Camphill cannot rely on section 15(1)(c) as a ground for refusal when considering the request afresh. However, if it considers that a refusal of the request under section 15(1) may be appropriate, it is obliged to offer assistance to the applicant in amending the request before doing so.

Secondly, any claims for exemption under sections 32 and/or 37 must have regard to my comments above on the application of those exemptions. Further guidance on the use of those and other exemptions is available on this Office’s website at www.oic.ie

Thirdly, I note that Camphill referenced section 37(3) as a ground for refusing the request in this case. That section provides that an FOI body may refuse an FOI request for records of a medical or psychiatric nature relating to the requester concerned if it considers that disclosure of the information to the requester concerned might be prejudicial to his or her physical or mental health, well-being or emotional condition (my emphasis). However, if it chooses to do so, it must, under section 37(4), offer access to such health professional having expertise in relation to the subject matter of the records as the requester may specify. It is clear that section 37(3) applies in circumstances where the requester seeks access to records relating to themselves, which is not the case here.  

Finally, if Camphill wishes to refuse access to any records under section 37(1), it must also have regard to the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016). They provide for a right of access to records containing personal information relating to an individual who has attained full age by his/her parent or guardian where, at the time of the request, the individual has or is subject to a psychiatric condition, mental incapacity or severe physical disability, the incidence and nature of which is certified by a registered medical practitioner, and by reason of that condition, incapacity or disability, the individual is incapable of exercising his/her rights under the FOI Act, and access to the individual's records would, in the opinion of the public body having regard to all the circumstances, be in his/her best interests.

The Minister for Public Expenditure and Reform has published guidance on the application of the 2016 Regulations. In the particular circumstances of this case, if Camphill wishes to rely on section 37(1) as a ground for refusing access to information relating to the applicant’s daughter, it must consider the 2016 Regulations and Ministerial guidelines.

Decision

Having carried out a review under section 22(2) of the FOI Act, I annul Camphill's decision to refuse, under sections 32(1) and 37(1), the applicant’s request for all personal information held relating to his daughter on the basis that it has not properly applied the provisions of the FOI Act. I direct Camphill to undertake a fresh consideration of the applicant's FOI request in accordance with the provisions 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