Mr Y and Department of Employment Affairs and Social Protection [2021] IEIC 97482 (25 January 2021)

Whether the Department was justified in refusing the applicant’s request for all medical reports pertaining to his daughter under section 37 of the Act and in refusing access to other records that contain, or should contain, his name and/or signature under section 15(1)(a) of the Act on the ground that the records sought do not exist

25 January 2021

Background

On 20 July 2020, the applicant submitted a request to the Department for all medical reports pertaining to his daughter, all documents that have his name or signature on them, and all documents that should have had his signature. He said he was exercising his legal rights as a guardian of his daughter, who is 17 years old. He said he was informed by his solicitors that the mother is in receipt of Carer’s Allowance for his daughter. He suggested that medical reports were required and that these reports require his permission and signature and to-date this has not happened.

On 20 August 2020, the Department refused the request under section 37 of the FOI Act on the ground that they relate solely to personal information about other persons. On 2 September 2020, the applicant sought an internal review of the Department’s decision.

On 23 September 2020, the Department issued its internal review decision. It affirmed the refusal of medical reports for the applicant’s daughter under section 37(1). The decision maker added that he had considered the regulations introduced pursuant to section 37(8) of the Act which provide for a right of access to personal information relating to an individual who has not attained full age by his/her parent or guardian where access to those records would, having regard to all the circumstances, be in the individual’s best interests. The decision maker said he had not been able to establish whether granting the request would be in the best interests of the person concerned in this case.

The decision maker refused the request for records that have his name or signature on them under section 15(1)(a) on the ground that no such records exist. In relation to the request for records that should have had the applicant’s signature, the decision maker refused this part on the ground that it was not a valid request for records and that no records exist.

On 25 September 2020, the applicant sought a review by this Office for a review of the Department’s decision. I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting the review, I have had regard to correspondence between the applicant and the Department as outlined above and to communications between this Office and the relevant parties on the matter. I have also had regard to the content of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of this Review

This review is concerned solely with whether the Department was justified in refusing the applicant’s request for all medical reports pertaining to his daughter under section 37 of the Act and in refusing access to other records that contain, or should contain, his name and/or signature under section 15(1)(a) of the Act on the ground that the records sought do not exist.

Preliminary Matters

Before I consider the substantive issues arising in this case, I would like to make a number of preliminary comments.

First, in his application to this Office, the applicant said he needs the relevant documents to exercise his legal rights for the Gardai to investigate fraud. Section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall generally be disregarded. This means that this Office cannot have regard to the applicant’s motives for seeking access to the records at issue, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the records where the Act requires a consideration of the public interest.

Secondly, it should be noted that this Office has no remit to investigate complaints or to adjudicate on how public bodies perform their functions generally. As such, this Office has no role in considering whether the Department acted appropriately in its handling of records that the applicant believes should have had his signature on them or in considering whether such records should, indeed, have had his signature on them.

Finally, section 25(3) requires this Office to take all reasonable precautions in the course of a review to prevent disclosure of exempt information. This means that the description I can give of the records at issue and the reasons I can give for my decision in this case are necessarily limited.

Analysis and Findings

Access to medical reports relating to the applicant’s daughter

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.

Personal information is defined in 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 Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including (i) information relating to the medical history of the individual, and (x) information relating to the entitlements of the individual under the Social Welfare Acts as a beneficiary (within the meaning of the Social Welfare Acts) or required for the purpose of establishing whether the individual, being a claimant (within the meaning of those Acts), is such a beneficiary.

Having regard to the nature of the records sought, it is clear that their release would involve the disclosure of personal information relating to the applicant’s daughter. It is also clear that the release of any relevant records held in respect of an application by the mother for Carers Allowance would involve the disclosure of personal information relating both to the applicant’s daughter and to the mother. Accordingly, I find that section 37(1) applies to such records. However, that is not the end of the matter as section 37(1) is subject to the provisions of subsections (2) and (5), while the Regulations introduced pursuant to subsection (8) are also of relevance in this case.

Subsection (2) provides that subsection (1) does not apply in certain circumstances. I am satisfied that none of those circumstances arise in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third party has not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

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.

In relation to the public interest test contained in subsection (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. It is also relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.

As I have noted above, the applicant indicated that he required access to the records due to concerns about potential fraud. In essence, he believes that his signature would be required on any application to the Department relating to his daughter. While this Office has no role in determining whether or not he is correct, I note that during the review the Department said there is no requirement under legislation for the applicant’s signature to be provided as part of any application it holds in respect of his daughter.

Having regard to the nature of the information at issue, I am aware of no public interest factors in favour of the release of the records at issue that, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that subsection (5)(a) does not apply.

Subsection (8) provides that the Minister may provide by regulations for the grant of a request where the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual. The Regulations in question are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016. They provide for a right of access to personal information relating to an individual who has not attained full age by his/her parent or guardian where access to those records would, having regard to all the circumstances, be in the individual’s best interests.

The Minister for Public Expenditure and Reform has published guidance in relation to access to records by parents under section 37(8) and the related Regulations (i.e. Central Policy Unit Notice 25, available on www.foi.gov.ie ). Under section 48(3) of the Act, FOI bodies must have regard to such guidance when performing their functions under the Act.

The guidance provides that the factors to be considered in cases where the question of access to personal information of minors are:

Whether the minor would consent to the release of the material
Whether release of the material would damage the minor in some way
Whether the records are held in the minor's own right

It is relevant to note that the Supreme Court held in the case of McK v. The Information Commissioner [2006] IESC 2, available at www.oic.ie , that a parent is entitled to a rebuttable presumption that access to his or her child's medical information is in the best interests of the child.

In submissions to this Office, the Department said that in making its decision, it took into consideration the provisions of section 37(8) of the Act, the Regulations and the Minister’s guidance, referred to above. The Department said that there is no automatic right of access for parents or guardians in respect of records relating to minors. It said that no evidence has been provided to indicate why the records are required or why this would be in the daughter’s best interest. It said that the applicant has not set out the purpose of his request for medical records pertaining to his daughter.

The Department noted that as part of his FOI request, the applicant provided court documents including a Maintenance Order and an Affidavit of Welfare. It said that none of the documents provided confirm the nature of his relationship with his daughter or indicate that he has joint custody or guardianship arrangements. The Department said that before a decision was made on the internal review, the applicant was contacted by telephone and asked to clarify whether he has court documentation to confirm guardianship arrangements. It said that the applicant did not provide any documentation to indicate that he has a legal basis for obtaining information about his daughter. Having considered the information available, the Department said it does not consider that the release of the records in this case is in the daughter’s best interests.

While I believe I am prohibited by the provisions of section 25(3) from giving a full explanation of my findings, having regard to the particular circumstances of this case I do not consider that granting the applicant access to his daughter’s medical reports would be in her best interests. I find, therefore, that the applicant is not entitled to such records having regard to the Regulations made under section 37(8) of the FOI Act.

Records that contain, or should contain, the applicant’s name and/or signature

The Department refused this part of the applicant’s request under section 15(1)(a) of the Act on the ground that no such records exist. The applicant did not, at any stage, suggest that he was seeking access to any records concerning dealings he, himself, may have had with the Department. It is clear from his request and from his engagements with this Office that he is seeking access to records relating to his daughter that might from part of an application or applications submitted by a party or parties other than him.

As noted above, the Department said there is no requirement under legislation for the applicant’s signature to be provided as part of any application it holds in respect of his daughter. Furthermore, the applicant has provided no evidence to suggest that the Department holds records containing his name or signature. I have examined the records identified by the Department as relevant to his request in this case and note that they do not contain the applicant’s name or signature.

Accordingly, I find that the Department was justified, under section 15(1)(a) of the Act, in refusing the applicant’s request for access to records that contain, or should contain, his name and/or signature on the ground that no such records exist.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of Department to refuse, under sections 37 and 15(1)(a), the applicant’s request for all medical reports pertaining to his daughter and all records that contain, or should contain, his name and/or signature.

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