Whether the HSE was justified, under section 37 of the Act, in redacting certain information from records relating to the distribution of annual leave locums amongst the Radiologists of a named hospital for a specified period and whether it was justified, under section 15(1)(a), in refusing access to any other relevant records apart from those released
19 January 2021
Background
In a request dated 6 November 2019, the applicant sought information on the distribution of annual leave locums amongst the Radiologists of a named hospital over the last 18 months. The applicant is one of the Radiologists in question. In a decision dated 2 January 2020, the HSE released redacted copies of claims for payment submitted by the staff members who provided locum cover. The names and personnel numbers of the staff members in question were redacted under section 37 of the FOI Act.
On 9 January 2020, the applicant inquired if he could be provided with the information in a format that provided the total amount paid to each doctor for the period, with the names of each doctor anonymised, e.g. Doctor A, B, C etc. In response, the HSE said that the information did not exist in this format. On 16 January 2020, the applicant sought an internal review of the HSE’s decision. On 4 February 2020, the HSE affirmed its original decision to refuse access to the redacted information and to refuse to provide the information in the alternative format sought by the applicant under section 15(1)(a) of the Act on the ground that no such record containing that information exists. On 4 February 2020, the applicant sought a review by this Office of the HSE’s 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 the correspondence between the parties outlined above and to the correspondence between this Office and both parties on the matter. I have also had regard to the contents of the records identified as coming within the scope of the request. I have decided to conclude this review by way of a formal, binding decision.
Scope of the Review
The applicant’s position is that the HSE has not provided him with the information sought, namely the distribution of annual leave locums amongst the permanent Radiologists of a named hospital over a specified period. While the HSE released redacted copies of certain claims for payment, its position, in essence, is that it holds no further relevant records.
I should say at the outset that it is not clear to me that the redacted records released fall within the scope of the applicant’s request. The applicant sought details of annual leave locum cover. As I will explain in more detail below, the records at issue are not concerned with annual leave locum cover. Nevertheless, as the HSE decided to release the records in question and the applicant has not suggested that the records sought are not relevant to his request, this review will consider whether the HSE was justified, under section 37, in redacting certain information from the records. I will also consider whether the HSE was justified, under section 15(1)(a) of the Act, in refusing to provide any further records containing the information sought.
Analysis and Findings
Section 15(1)(a) provides that an FOI body may refuse to grant a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in such cases is to review the decision of the body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Based on the information provided, this Office forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found.
It is important to note at this stage that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.
Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record, containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter. The question of whether or not the body might be in a position to create a record to provide the information sought is not a matter for consideration by this Office.
Details of the searches undertaken by the HSE to locate the relevant records in this case were provided to the applicant by Ms Greenalgh of this Office during the course of the review. As those details have been furnished to the applicant, I do not propose to repeat them in full here but I have had regard to them for the purpose of this review.
As I have outlined above, records were provided to the applicant comprising of copies of claim forms that are submitted by staff members who provided locum cover during the period in question. The HSE said that the forms are used only for regular locum cover and sick leave cover but not for annual leave cover, which is what the applicant sought in order to determine the distribution of cover. It explained the different types of locum cover that occurs at the Hospital. ‘regular’ locum cover occurs due to there being six Radiology posts at the Hospital, one of which is vacant, and another of which is filled by a Radiologist who is not in a position to carry out on-call. The remaining four Radiologists cover both posts and claims for payment in respect of this cover are submitted on the relevant claim form. In response to his FOI request, the applicant was provided with 27 such forms that listed 89 dates of on-call cover for the fifth and sixth posts.
The HSE again stated that these forms are not used in the case of radiologists covering each other’s regular annual leave. It said that as Radiologists cover each other’s annual leave, there is no application process involved. The cover is incorporated into the roster between the existing Radiologists. The HSE added that the form is also used in covering sick leave but that no such sick leave cover arose during the period in question.
The applicant said it is not clear to him if the records provided to him relate to annual leave locum cover and noted that, with one exception, there is no differentiation between ‘regular’ locum cover and annual locum cover. Of the forms he received, the applicant believes that he has identified one payment form being for annual leave cover. The HSE carried out some further checks and informed this Office that while there is a record of the applicant covering for a colleague for this date, it is unable to say definitively if this form was for annual leave as there does not appear to be a corresponding annual leave record for that date on the system. In essence, it reiterated its position that it holds no relevant records that indicate how many days of annual leave cover was actually provided by or for each Radiologist.
In relation to the applicant’s request for details of the total amounts paid to each doctor, with the names of each of the doctors anonymised, the HSE said it does not hold the information he is seeking in the format sought and the records do not exist in any other format, other than in the scanned copies of the forms provided to him. It stated that to provide the information sought in the format provided would involve the creation of a new record that is not required under the Act. Accordingly, it refused the request on the basis that the information sought does not exist in any other format other than in the hard copies that have been previously provided.
Section 17(4) of the FOI Act does not require public bodies to create records if none exists apart from a specific requirement, to extract records or existing information held on electronic devices. However, there is no corresponding requirement on an FOI body to extract relevant information from hard copy records in order to compile the information sought. Such an exercise would involve the creation of a new record, which is not required under the Act. From the submissions provided, I am satisfied that the information sought is not held electronically in this case.
Having considered the matter, I find that the HSE was justified, under section 15(1)(a) of the Act, in refusing access to any additional records containing information on the distribution of annual leave locums on the ground that no further relevant records exist or can be found, after all reasonable steps to ascertain their whereabouts have been taken.
Section 37(1)
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 relating to an individual other than the requester. 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. Without prejudice to the generality of the foregoing definition, section 2 also lists 14 non-exhaustive examples of what must be considered to be personal information, including (ii) information relating to the financial affairs of the individual, (iii) information relating to the employment or employment history of the individual and (v) information relating to the individual in a record falling within section 11(6)(a), i.e. personnel records of staff of FOI bodies.
Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers). The exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally.
Having examined the records at issue, and having regard to the definition of personal information as set out above, I am satisfied that the information redacted by the HSE comprises personal information relating to individuals other than the applicant. I find, therefore, that section 37(1) applies. However, that is not the end of the matter as subsection (1) is subject to the other provisions of the section.
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply, I am satisfied that none of the circumstances in section 37(2) applies in this case. Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where (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 request would benefit the person to whom the information relates. I am satisfied that the release of the information at issue in this case would not benefit the individuals concerned and that subsection 5(b) does not apply.
In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 57, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”. While the comments of the Supreme 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.
The FOI Act 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. Moreover, unlike other public interest tests provided for in the FOI Act, there is 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.
In this case, I am aware of no public interest in releasing the redacted information that would, on balance, outweigh the privacy rights of the individuals to whom the information relates. I find, therefore, that the HSE was justified in its decision to refuse access to the personal information of third parties contained in the records under section 37(1) of the FOI Act.
Decision
Having carried out a review under section 22(2) of the FOI Act, I affirm the HSE's decision to redact, under section 37(1), certain information from the records released on the ground that the disclosure of the redacted information would involve the disclosure of personal information relating to third parties. I also affirm the HSE’s decision to refuse access, under section 15(1)(a), any further relevant records on the ground that no further relevant records exist or can be found.
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