Whether the Hospital was justified, under section 37 of the Act, in refusing to provide the applicant with a copy of the CCTV footage for the period between 7.30am and 7.45am on a particular date for a main corridor in a named unit of the Hospital on the ground that the disclosure of the footage sought would involve the disclosure of personal information relating to third parties

1 July 2021

Background

In a request dated 2 November 2020, the applicant sought access to CCTV footage for a particular date from approximately 7.30am to 7.45am from the main corridor in a named unit of the Hospital. He asked that the Hospital link with a named member of staff as he had retained CCTV footage.

As the Hospital failed to make a decision on the request, the applicant sought an internal review of the deemed refusal of his request on 17 December 2020. Following engagements with this Office, the Hospital issued its effective position on the request on 22 January 2021. It refused the request under section 37 of the FOI Act, noting that the applicant was not present in the footage, that there were other identifiable individuals in the footage and that release of the footage would result in release of their personal information. On 15 February 2021, the applicant asked this Office to review the Hospital’s decision.

I have now completed my review in this case. In carrying out my review, I have had regard to the correspondence between the Hospital and the applicant, and to communications between this Office and both the applicant and the Hospital on the matter. I have also had regard to the contents of the CCTV records held by the Hospital. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

In his correspondence with this Office, the applicant expressed dissatisfaction with the significant delays he has faced in the course of the FOI process with the Hospital, and he also questioned the veracity of the footage this Office was reviewing.

I fully accept that the Hospital did not process the request in a timely fashion in this case and I would urge the Hospital to review its FOI processing procedures with a view to avoiding unnecessary delays in the processing of future requests. However, this review, undertaken under section 22 of the Act, is concerned solely with whether the Hospital was justified in refusing access to the record sought. As to the veracity of the record provided, I have no reason to consider that the footage provided to this Office for the purposes of the review is anything other than the footage sought.

The applicant also contended that he gave a rough approximate time to help the FOI/security departments to locate the actual timeframe of the CCTV footage he had requested of particular incidents/himself and these are outlined on the FOI request. He said that he is therefore of the view that the timeframe is flexible and allows a window of time either side of that approximate time frame he has given. I disagree. The request made to the Hospital does not contain details of any particular incidents sought by the applicant. Instead it details specific times for which the footage was sought. While it does say “approximate”, section 12 of the Act requires that a request must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps.

I appreciate that the applicant was in communication with the Hospital at the time concerning an alleged incident involving him. However, he did not make a request for footage of such an incident. Instead, he made a request for footage for a specified period. It is not appropriate, in my view, to expand the review to include footage relating to a period that falls outside of the period specified in the request and that was not considered by the Hospital. If the applicant requires footage for a different period or footage of a specific incident, it is open to him to submit a new request for such footage.

Accordingly, this review is concerned solely with whether the Hospital was justified, under section 37 of the Act, in refusing to provide the applicant with a copy of the CCTV footage for the period between 7.30am and 7.45am on a particular date for a main corridor in a named unit of the Hospital on the ground that the disclosure of the footage sought would involve the disclosure of personal information relating to third parties.

Analysis and Findings

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.

Section 2 of the Act defines “personal information” as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by it as confidential. Section 2 goes on to provide a non-exhaustive list of fourteen categories of personal information.

Certain information is excluded from the definition of personal information. Where an individual is a member of the staff of an FOI body, paragraph (I) of section 2(1) of the Act provides that personal information does not include;

• the name of the individual,
• information relating to the position held or its functions,
• the terms upon and subject to which the individual holds 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 the functions of the position

The exclusions at Paragraph (I) do not exclude all information relating to staff members. The exclusions are 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.

The CCTV footage at issue in this case captures a number of parties, none of which include the applicant. I am satisfied that all such third parties are staff members of the Hospital. In its letter of 22 January 2021 to the applicant, the Hospital argued that the release of the images of the third parties in question would involve the disclosure of personal information relating to those third parties.

In case OIC-96388 (available on this Office’s website, www.oic.ie) involving a request for hospital CCTV footage, I found that a clear distinction can be drawn between the name of a staff member contained in an official record and an image of that staff member captured on CCTV footage. I considered that additional information going beyond mere identification can be derived from such an image that is unrelated to either the position held by the staff member or its functions.

Having examined the footage at issue, I am satisfied that its release would involve the disclosure of personal information relating to third parties. I find, therefore, that section 37(1) applies to the footage. However, that is not the end of the matter as section 37(1) is subject to the provisions of subsections (2) and (5). 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 to the records 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, 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 request would benefit the person to whom the information relates. I am satisfied that subsection (b) does not apply in the circumstances of this case.

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.

Furthermore, McDermott J., in his December 2016 judgment in the case of F.P. v The Information Commissioner [2014 No. 114 MCA] (“the F.P. case”), which was subsequently upheld by the Court of Appeal, said that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that “the ‘public interest’ in granting access is not to be determined on the basis of the appellant’s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.”

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. Furthermore, it is important 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 information released under the Act may be put.

Given the inherently private nature of the information, I know of no public interest factors in favour of the release of the images of the third parties in question that would, on balance, outweigh their privacy rights. I find, therefore, that section 37(5)(a) does not apply in this case.

In conclusion, therefore, I find that the Hospital was justified in refusing the applicant’s request for a copy of the CCTV footage for the period between 7.30am and 7.45am on a particular date for a main corridor in a named unit of the Hospital under section 37(1) of the FOI Act.

Decision

Having carried out a review, under section 22(2), I hereby affirm the decision of the Hospital to refuse access, under section 37 of the Act, to a copy of the CCTV footage for the period approximately between 7.30am and 7.45am on a particular date for a main corridor in a named unit of the Hospital on the ground that the disclosure of the footage sought would involve the disclosure of personal information relating to third parties.

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 no later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Stephen Rafferty

Senior Investigator