Whether the HSE was justified in its decision to refuse access, under section 42(m)(i) of the Act, to the identity of the source of information provided to it concerning the applicant

13 September 2021

Background

On 25 November 2020, the applicant submitted a request to the HSE for the names of person(s) who she believes sent letters to the HSE Safeguarding Team concerning her in 2016 and 2020.

On 14 December 2020, the HSE refused access, under section 42(m) of the FOI Act, to two records it identified as containing the information sought, on the ground that the release of the records may disclose the identity of a source of confidential information. The HSE affirmed that decision on 20 January 2021, following an internal review. On 6 July 2021, the applicant sought a review by this Office of the HSE’s decision. In her application for review, she clarified that she was seeking the name(s) of the person(s) who made allegations against her concerning the care of her late mother.

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 had regard to the contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

While I am required, under section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter, that if it were included in a record, would cause the record to be exempt. As such, while I am constrained by section 25(3) in the level of detail I can give about the records identified by the HSE in this case, I believe I am not in breach of that section by describing them as referral forms. I can also confirm that the release of the forms would involve the disclosure of the identity of the source of information provided to the HSE concerning the applicant. I am also satisfied, having regard to the comments made by the applicant in her application for review, that she is, in essence, seeking the identity of that source.

Accordingly, this review is concerned solely with whether the HSE was justified in its decision to refuse access, under section 42(m) of the Act, to the identity of the source of information provided to it concerning the applicant.

Preliminary Matter

Section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that I 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 (not relevant in this case).

Analysis and Findings

Section 42(m)(i) provides that the Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal, or lead to the revelation of, the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, or where such information is otherwise in its possession. In essence, the section provides for the protection of the identity of persons who have given information in confidence in relation to the enforcement or administration of the law to ensure that members of the public are not discouraged from providing such information in the future.

For section 42(m)(i) to apply, three specific requirements must be met. The first is that release of the withheld information could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of information. The second is that the information given must have been given in confidence, while the third is that the information given must relate to the enforcement or administration of the law.

First Requirement
Given that the applicant is seeking details of the identity of the person(s) who provided information to the HSE concerning her, it is clear that the release of the information sought would reveal the identity of the supplier(s) of information and that the first condition has, therefore, been met.

Second Requirement
The second requirement for section 42(m)(i) to apply is that the provider of information must have provided that information in confidence. In its submission to this Office, the HSE said the Safeguarding Team received two referrals citing concerns. The first referral was from the HSE PHN reporting concerns that had been expressed to her by an individual(s) and the second referral was made directly to the Safeguarding Team by the same individual(s). From reviewing the social work assessments, case notes, as well as discussion with the social worker who managed both referrals and spoke directly with the concerned individual(s), the decision maker was happy that the information supplied on both occasions by the individual(s) to HSE staff was provided in good faith and on the understanding that their identity would not be revealed.

I accept that the individual(s) who provided information in this case did so on the understanding that their identity would not be disclosed. I accept that bodies such as the HSE act upon every report such as the type at issue in good faith and that the disclosure of the identity of complainant(s) could reasonably be expected to prejudice the flow of information which bodies such as the HSE rely upon to carry out their functions.  Having regard to the nature of the information at issue and to the HSE's position on the matter, I accept that the information was given in confidence in this case and I find that the second requirement has been met.

Third Requirement
The third requirement is that the information provided relates to the enforcement or administration of the law. The HSE, in accordance with the provisions of the Health Act 2004 (as amended by the Health Service Executive Governance Act 2013), is the single body with statutory responsibility for the management and delivery of health and personal social services to the population of Ireland. Section 7 of the Health Act 2004 (as amended) states that the objective of the HSE is to use the resources available to it in the most beneficial, effective and efficient manner to improve, promote and protect the health and welfare of the public. The HSE, in its role of promoting and protecting the health and welfare of the public has developed policies in protecting the elderly in society from abuse. These functions are carried out by the HSE Safeguarding Team as per the National Safeguarding Policy. I am satisfied, therefore, that the third requirement is met in this case.

Finding

Having found that each of the three requirements are met, I find that section 42(m)(i) of the FOI Act applies and that the Act does not apply to the information sought. It is important to note that section 42(m)(i) is not subject to a public interest balancing test. I find, therefore, that HSE was justified in refusing access, under section 42(m)(i), to the identity of the source of information provided to it concerning the applicant.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse access, under section 42(m)(i) of the FOI Act, to the identity of the source of information provided to it concerning the applicant.

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