Whether the HSE was justified in refusing access, under sections 17 and 37 of the FOI Act, to certain records, in whole or in part, relating to the applicant-�s son held by the HSE-�s Child and Adolescent Mental Health Services

15 April 2021

Background

In a request dated 10 August 2020, the applicant sought access to all records relating to her now adult son from April 2018 to 21 September 2019 held by the HSE-�s Child and Adolescent Mental Health Services (CAMHS). Her son provided his consent for the release of his personal information to his mother. In a decision dated 10 September 2020, the HSE identified 247 records as coming within the scope of the request. It decided to part-grant the request, refusing access to a number of records in full or in part under sections 17 and 37 of the Act.

The applicant sought an internal review of that decision, following which the HSE issued a late internal review decision wherein it released some additional information. Overall, it granted access to 152 records in full and 78 in part. Access to 17 records was refused in full. The applicant sought a review by this Office of that decision.

During the course of the review, the HSE revised its position on some of the records and released a small amount of additional information, including information relating to the applicant-�s other children who are minors, such that eleven further records were released in full and more information was released in 15 records to which access had already been granted in part. As a result, full access has now been granted to 163 records, 68 have been released in part, while the remaining 16 have been withheld in their entirety.

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 applicant-�s comments in her application for review and to the submissions made by the HSE in support of its decision.  I have also examined the records at issue.   I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by the HSE in the schedule of records it prepared when processing the request.

Scope of Review

The review is concerned solely with whether the HSE was justified, under sections 17 and 37 of the Act, in refusing access to records 95, 96, 109, 110, 127 to 129, 137 to 142, 193, 207, and 225 and in redacting certain information from records 10, 11, 12, 14, 15, 17, 20, 23, 24, 26, 27, 29, 31, 33, 34, 36, 39, 40, 43, 45, 52, 63, 64, 65, 66, 67, 72, 79, 83, 85, 86, 88, 89, 91, 92, 93, 97, 99, 100, 102, 120, 121, 134, 135, 150, 162, 169, 187, 188, 191, 192, 194, 196, 200, 203, 204, 205, 206, 217, 218, 220, 221, 222, 231, 235, 238, 240 and 244.

Preliminary Matters

Section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record. As a consequence, the descriptions I can give of the nature of the records or the reasons for my findings in this case are necessarily limited.

It is also important to note that the release of a record 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 a record released under the Act may be put.

Analysis and Findings

The HSE refused access to records 109 and 110 under section 17(2)(b)(ii).  It refused access to the remaining records, in whole or in part, under section 37.

Section 17(2)(b)(ii)

Section 17 does not provide a ground for the outright refusal of access to records. Rather, it is concerned with the manner or form in which access to the records sought will be granted. Under section 17(1), an FOI body may grant access to a record by providing the requester -

a) with a copy of the record,
b) with a transcript of the information concerned,
c) where available in such form and subject to subsection (2), with a searchable electronic version of the record,
d) with a reasonable opportunity to inspect the record,
e) in case the record is of sound or visual images, with a reasonable opportunity to hear or view the record,
f) in case the information is in shorthand or other code, with the information unencoded in written form or such other form as may be determined,
g) with the information in such other form or manner as may be determined, or
h) with the information in a combination of any 2 or more of the foregoing.

Under section 17(2)(b), where the FOI body decides to grant a request and the request is for access in a particular form or manner to a record, it must grant access in the form or manner sought unless it considers that granting access in that form or manner would give rise to anyone of a number of specified harms, including (ii) where access would involve an infringement of copyright (other than copyright owned by the State, Government or the FOI body concerned).

In such a case, the body must grant access to the record in such other form or manner specified in or determined under subsection (1) as may be agreed by the body and the requester or if such agreement cannot be reached, in such form specified in subsection (1) as the body considers appropriate (section 17(3) refers).

In this case, the applicant sought copies of the relevant records. According to the HSE, records 109 and 110 are extracts from the Revised Child Anxiety and Depression Scale (RCADS) and the RCADS and its derivative works (inclusive of translations) are copyrighted. Having examined the records, I accept the HSE-�s assertion that granting access to a copy of the record would involve an infringement of copyright owned by a party other than the State, the Government or the Department.  I find that section 17(2)(b)(ii) applies.

However, I am not aware that any effort was made by the HSE to reach agreement with the applicant an alternative form or manner of access to the records, as is required under section 17(3), although I note that the HSE said in its decision letter that copies of the records are available to be viewed by the applicant at its premises if required.

I also note that access by way of inspection would appear to be the most appropriate alternative manner or form of access, given the grounds on which the HSE refused to provide a copy of the record. In the circumstances, I accept that the HSE was justified in refusing access to a copy of records 109 and 110 and that it has offered an appropriate alternative form or manner of access to the records. It remains open to the applicant to make arrangements with the HSE to inspect the records as offered by the HSE.

Section 37 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 (subsection (2)(a) refers) or where any individual to whom the information relates consents to its disclosure to the requester (subsection (2)(b) refers).

This means that in this case, the HSE cannot refuse access to the records on the ground that they contain personal information relating to the applicant and/or her son as he has consented to the release of such information. However, section 37(7) provides that 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 and/or her son, also involve the disclosure of personal information relating to an individual or individuals other than the requester and/or her son (commonly known as joint personal information). If a record relating to the applicant and/or her son also contains personal information relating to an individual other than the applicant and/or her son, then section 37(1) applies.

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 definition also contains a list of 14 specific types of information that is personal information, without prejudice to the foregoing definition, including information relating to the medical history of an individual.

The records or parts of records at issue relate to the engagements the applicant-�s son has had with the HSE-�s CAMHS. While the records mainly relate to the applicant-�s son, they also contain information relating to parties other than the applicant or her son. I am satisfied that such information is personal information relating to those parties for the purposes of the Act.

Having carefully examined the records I find that all of the information at issue falls within one of two categories of information, namely:

(i) personal information relating solely to individuals other than the applicant or her son, and
(ii) joint personal information relating to the applicant and/or her son and one or more other individuals.

I find that section 37(1) applies to all of the information at issue.

There are some circumstances, provided for at section 37(2) of the FOI Act, in which the exemption at section 37(1) does not apply. I am satisfied that those circumstances do not arise in this case. Section 37(5) provides that a request which would fall to be refused under section 37(1) may still be granted where the FOI body considers that, on balance, (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual concerned.

In my view, the release of the information to which I have found section 37(1) to apply would not benefit the third parties to whom the information relates. I am satisfied that section 37(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 and the Information Commissioner & Ors, 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-�.

Moreover, while the Court stated that the public interest balancing test involves a -�weighing of the respective private and public interests in the analysis of the records in issue-�, it did not disturb the guidance that it previously gave 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 Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. Although the Court-�s comments were made in cases involving confidentiality and commercial sensitivity, 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.

The information at issue in this case is of a private and sensitive nature. In the circumstances, and given that the release of records under the FOI is regarded, in effect, as release to the world at large as I have explained above, 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 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 to provide a copy of records 109 and 110 having regard to the provisions of section 17 (2)(b)(ii) and note that it remains open to the applicant to arrange for the inspection of those records. I also affirm its decision to refuse access, under section 37(1), to certain other records, in whole or in part.

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