Whether the HSE was justified in refusing access to records submitted by the applicant to the HSE, under sections 15(1)(a) and 37(1) of the FOI Act

28 January 2021

Background

In a request dated 13 November 2019, the applicant sought access to three involuntary admission application forms he had submitted to a named medical centre in 2019 in respect of a third party and letters he submitted to a named consultant psychiatrist between 2018 and 2019 concerning that third party. In a decision dated 4 February 2020, the HSE refused the first part of the request under section 15(1)(a) of the FOI Act on the ground that there was no record of the forms having been received by the medical centre. In respect of the second part, it informed the applicant that he would require the authorisation of the third party in order to access such correspondence. The HSE did not cite any relevant provisions of the Act for refusing access.

The applicant sought an internal review of that decision by email dated 4 March 2020, in which he included an authorisation from the third party for him to access the records sought and a copy of the individual’s passport. By letter dated 19 May 2020, the HSE affirmed its refusal of the first part of the request and informed the applicant that, as third party authorisation had now been received, it would start processing the second part of the request.

On 5 July 2020, the applicant sought a review by this Office of the HSE’s decision. During the course of this review, submissions were received from the applicant and the HSE in support of their respective positions. The applicant was provided with details of the HSE’s focused submission and invited to submit further comments on the matter. Following enquiries by this Office, the HSE also provided the applicant and this Office with its effective position regarding the second part of the request. Therein, the HSE stated that the request should be part-granted, with certain information withheld under section 37(1) of the FOI Act. The applicant has also been provided with an opportunity to make any final comments on the matter. However, to date, no such submission has been received. Accordingly, I have decided to conclude this review by way of a formal, binding decision.

I have now completed my review in accordance with section 22(2) of the Act. In carrying out my review, I have had regard to any submissions made by the parties to this review and to communications between the HSE and the applicant, as above. I have also examined the contents of relevant records.

Scope of the Review

This review is concerned solely with the question of whether the HSE was justified in refusing access to the records sought under sections 15(1)(a) and 37(1).

Preliminary Matters

In his correspondence with this Office, the applicant made wide-ranging arguments concerning the review and the manner in which the HSE processed his 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 has taken the view that partial access to some records may be granted 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.

• 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.

• 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. He objects to the fact that in conducting a review, this Office provides the FOI body concerned with a copy of the application for review in the case, including any arguments raised therein. I am satisfied that this Office’s procedures comply with the principles of fair procedures. Section 22(6)(a) requires that this Office provide the body concerned with a copy of the relevant application for review. In order to progress a review, we put the body involved on notice of arguments raised by the applicant concerned 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.

• Finally, I can confirm that I have had regard to the full details of the applicant’s submissions, regardless of whether or not all of the points raised are specifically addressed in this decision.

Analysis and Findings

HSE’s current position

The HSE has taken the view that access to the records sought may be part-granted. As it is not satisfied that consent has been established from a relevant third party (section 37(2) refers), the HSE considers that certain information in the records is exempt from release under section 37(1) of the FOI Act (personal information).

Involuntary admission forms

In its decision, the HSE refused the first part of the request, for involuntary admission forms, under section 15(1)(a). This section provides that an FOI body may refuse to grant access on administrative grounds, where the records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.

In its submissions to his Office, the HSE said that when responding to the request, the decision maker explained that the relevant Mental Health Services area did not have a record of receiving the involuntary admission forms. It explained that the process for involuntary admission involves the completion of the relevant form which is reviewed by a GP and the GP determines if there is a need to admit the patient to an approved mental health facility. Should an admission take place, the form is then passed to the HSE. It said that in this case, it appears the GP may not have determined the need for the third party to be involuntarily admitted to an approved mental health facility and as such, no relevant records exist with the relevant Mental Health Services area.

The HSE added that it later transpired that records were held by the relevant GP and that such records would have come under the remit of a decision maker in a different area of the HSE. It said it understood that a separate request for similar records was submitted to that area and that the decision on that application was under review by this Office.

In essence, the HSE refused a request for records on the ground that a specific area of the HSE did not hold the records sought, notwithstanding the fact that for the purposes of the FOI Act, they were, indeed, held by the HSE, albeit in another organisational area. This is an unacceptable position for the HSE to take. It is entirely unreasonable for the HSE to expect requesters to familiarise themselves with the complex make-up of the HSE and to fully inform themselves as to the likely location of relevant records before submitting a request. It is incumbent upon the HSE, as a single FOI body, to use its own knowledge of its complex structure to ensure that all reasonable steps are taken to locate records held by it on foot of an FOI request, which includes ensuring that all relevant locations are searched. It is a matter for the HSE itself to coordinate responses to requests and the onus should not be placed on requesters to ensure that their requests are submitted to the precise area that may hold the records sought. I intend to follow up this matter separately with the HSE.

While this Office subsequently encountered further difficulties in securing access to the subject records which, in turn, delayed the progress of the review, the current position is that HSE has since granted partial access to the involuntary admission forms, releasing personal details relating to the applicant only. According to the HSE, it withheld all other information in the records under section 37(1), as it was not satisfied that the requirements at section 37(2), concerning third party consent, had been met. 

Letters to a named doctor

The HSE identified the four letters it considered to be within scope and it determined that access to these records should be part-granted only. The HSE informed the applicant that, as the signed consent from the third party he had provided was not consistent with information in that individual’s files, it had sought further clarification from the individual. The HSE noted that a response had been received under the name of the third party, but that this had been unsigned. The HSE informed the applicant that, in the circumstances, consent had not been established to its satisfaction in accordance with section 37(2). It added that it did not consider that the consent provided from the individual in question was informed consent.

Accordingly, the HSE determined that certain information in the records should be withheld under section 37(1) (personal information and “joint personal information” within the meaning of section 37(7)).

Section 37(1) – 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 at 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”.

Having examined all of 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 find that section 37(1) applies to all of the withheld information.

Subsection (2) of section 37 provides for a number of other circumstances where subsection (1) does not apply. Subsection 2(b) provides that the section does not apply if any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester. In such cases, the FOI body must ensure, before granting the request, that the consent of the individual is established to its satisfaction.

As noted above, this Office invited the applicant to comment on the HSE’s comments concerning the issue of consent in this case. To date no response has been received. Accordingly, I am satisfied that the applicant has been placed on notice of the material issues arising and has been provided with an adequate opportunity to comment on same.

In the circumstances of this case and, having regard to the submission made by the HSE on the matter, I accept that the HSE was justified in finding that consent was not established to its satisfaction in accordance with subsection (2)(b).

Subsection (2) also outlines a number of other circumstances where section 37(1) does not apply. I am satisfied that no such circumstances arise in this case.

Section 37(1) is subject to the provisions of subsection (5). 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. No argument has been made that subsection 5(b) applies in this case and I am satisfied that it does not.

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.

While the applicant made a number of arguments regarding the manner in which the HSE dealt with him, as well as regarding fair procedures and natural justice, it seems to me that he has expressed what is essentially a private interest in release.

The information at issue is of an inherently private and sensitive nature. I am also cognisant that, as outlined above, the release of records under FOI is regarded, in effect, as release to the world at large. Having considered the matter carefully, in the circumstances of this case, I find no relevant public interest in granting access to the withheld information that, on balance, outweighs the public interest in upholding the right to privacy of the third party individuals concerned. I find that section 37(5)(a) does not apply. Accordingly, I find 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 withhold certain information from the records sought under section 37(1) 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