Whether the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records relating to the applicant other than those already released on the ground that no further relevant records could be found and in refusing access, under section 37, to certain information contained in a number of the released records
OIC-97608-C3Q2T4 / OIC-97817-N1V0F3
Background
On 15 January 2020, the applicant sought a copy his files held by the HSE’s Mental Health Service dating from 4 December 2015 to 13 January 2020, to include copies of all communications sent or received by staff and any communication between the Mental Health Service and any other party. This request was processed by the HSE under case reference 25085.
In a decision dated 20 March 2020, the HSE identified 743 pages of notes relating to the applicant. It refused access to parts of certain records under sections 35(1) and 37(1), relating respectively to information provided in confidence and third party personal information.
In a subsequent request dated 15 April 2020, the applicant sought copies of all records of the type sought in his earlier request but for the period 20 November 2019 to the date of his request. He added that his request included information relating to him in internal emails or electronic communication or any other internal communications that holds information on him that is not in his file. This request was processed by the HSE under case reference 25504. The HSE failed to issue a decision on the second request within the statutory time-frame. On 27 July 2020, the applicant sought an internal review of both the decision on his first request and the deemed refusal of his second request.
In relation to the first request, he narrowed the scope of the request for internal review. He said he was seeking a review of the decision to redact pages 523 and 524 on the ground that they related to a meeting with his nephew who had given his consent to the release of information relating to him. He also sought a review of the decision to redact pages 194 to 196 on the ground that his nephew had already provided consent and his mother would do so shortly. Furthermore, he argued that certain records of communications between the Mental Health Services and his GP should exist. Finally, in relation to both requests, he noted that he had not received electronic records sought in his second request and he confined the request for internal review to electronic records from 1 August 2018 to the date of his second request. He said he did not require access to emails or text he had received or sent.
On 18 August 2020, the HSE wrote to the applicant to say that due to the demands of COVID-19 pandemic it was not in a position to meet the due date for its response but hoped to be in a position to issue a decision by 18 September 2020. At that stage, the applicant sought a review by this Office of both decisions. Following communications with this Office, the HSE wrote to the applicant on 25 September 2020 in respect of request reference 25085 wherein it affirmed the original decision. On 29 September 2020, it issued its response in respect of request reference 25504, wherein it identified 365 pages of records falling with the scope of the request. The numbering used by the HSE to identify those records ran consecutively following the records identified on foot of request reference 25085. It redacted parts of some records under sections 35(1) and 37(1).
On 29 September 2020, the applicant sought a review by this Office of the HSE’s decision on request reference 25085 and this was processed under case number OIC-97608. On 5 October 2020, he sought a review of the HSE’s decision on request reference 25504 and this was processed under case number OIC-97817. He indicated that he was not taking issue with the redactions made to the records issued in that case and did not require this Office to consider them any further. He did, however, indicate that he believed that further records relevant to his request existed which hadn’t been released to him.
In the course of forwarding records to this Office the HSE identified a further 89 pages of records, relating to both cases, and these were released in full to the applicant on 17 December 2020.
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 his applications for review and to the submissions made by the HSE in support of its decisions. 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. Given the clear overlap between the two cases I have decided to issue a joint decision covering both cases.
Scope of the Review
In the course of its submission to this Office, the HSE indicated that it was no longer seeking to rely on section 35 to refuse access to information contained in the records in case OIC-97608 and instead wished to rely on section 37 to withhold that information.
The HSE also indicated that it was no longer relying on section 37(1) to refuse access to information in records 2, 684 and 725 and these records were subsequently released to the applicant. It also indicated that it was relying on section 37(1) to refuse access to parts of records 613 and 616 but from the records provided to this Office it does not appear that any information was actually redacted from these records and I therefore do not consider it necessary to consider them further.
Finally, in the course of the review by this Office the HSE indicated that it was no longer seeking to refuse access to information relating to the applicant’s nephew in the relevant records. It therefore released sixteen pages of records to the applicant containing information relating to his nephew, including pages 523 and 524.
This review is therefore concerned solely with whether the HSE was justified in refusing access to information contained in pages 194, 195 and 196 of the relevant records under section 37(1) of the FOI Act and in refusing access, under section 15(1)(a) of the FOI Act, to further records other than those already released on the ground that no further relevant records exist or can be found.
Preliminary Matters
Before I address the substantive issues arising, I would like to make a number of preliminary comments.
First, as has previously been explained to the applicant, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
Secondly, although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.
Thirdly, section 18 of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.
Finally, section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the HSE to satisfy the Commissioner that its decision to refuse access to certain records, either in whole or in part, was justified.
Analysis and Findings
Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In such cases, the role of this Office is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
In his correspondence with this Office, the applicant argued that further records relevant to his request exist and should have been released to him. In particular, he argued that emails should exist on his files between a number of named consultants, therapists and social workers. He also outlined his view that a number of internal memos or documents relating to him should exist.
During the course of the review, the HSE provided submissions to this Office in which it outlined details of the searches carried out and provided its explanation as to why no further relevant records could be found. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In summary, it said the individuals identified by the applicant were asked on a number of occasions to carry out searches for records relating to the applicant in light of his multiple FOI requests and that they are confident that all reasonable searches have been carried out.
In particular, the HSE provided a list of staff members who had been contacted and asked to conduct additional searches for any records which they might hold in relation to the applicant’s two requests. As set out above, in the course of doing so a number of additional records were located and released in full to the applicant.
It is important to note that the FOI Act is concerned with access to records held by public bodies that actually exist, as opposed to records that a requester believes ought to exist. If the record sought is not held by the body, then that is the end of the matter. The Act does not require public bodies to create records in order to respond to requests for information or questions that a requester may have.
It is, in essence, the HSE’s position that no further relevant records can be found or do not exist after all reasonable steps to ascertain the whereabouts of relevant records have been taken. Having considered the details of the searches undertaken and its explanation as to why no further records exist or can be found, I am satisfied that the HSE has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s request.
In the course of the review this Office became aware of the existence of a further record which had not been identified by the HSE. I am constrained by the provisions of section 25(3) in describing this record. The Investigator contacted the HSE in relation to this record and in particular queried why this record had not been identified in the searches undertaken following the applicant’s request numbered 25504. In response the HSE indicated that as the record was an email from an external source relating to the processing of the applicant’s FOI request the decision-maker did not consider it to form part of the applicant’s file. The HSE further indicated that it not their normal practice when processing FOI requests to include records relating to the administration of the request itself.
Having considered the matter, and the very particular circumstances of this case, I accept the explanation put forward by the HSE in relation to this record. I am satisfied that given the specific nature of this record it does not call into question the adequacy of the searches undertaken in relation to the applicant’s two requests.
I find, therefore, that the HSE was justified in refusing access, under section 15(1)(a) of the Act, to further records apart from those already released on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Section 37
As set out above, the HSE has refused access to information contained in pages 194, 195 and 196 of the relevant records on the basis of section 37(1).
Section 37(1) 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). Section 37(7) provides that a request shall be refused where access to a record would, in addition to involving disclosure of personal information relating to the requester, also involve the disclosure of personal information of other individuals (joint personal information).
For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily 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 that body as confidential. The FOI 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 educational, medical, psychiatric or psychological history of the individual, and (xii) the name of the individual where it appears with other personal information relating to the individual or where disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual".
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. Of particular relevance in this case is section 37(2)(b) which provides that section 37(1) does not apply if an individual to whom the information relates consents, in writing or otherwise, to its disclosure to the requester.
Due to the sensitive nature of the records, I cannot discuss their content in any detail, other than to state that the withheld information is sensitive personal information about third parties other than the applicant, as well as joint personal information about the applicant and other identifiable individuals. Following the release of the information relating to the applicant’s nephew to the applicant, the outstanding information which has been redacted relates to the applicant’s mother as well as another individual.
When the Investigator in this case sought details from the applicant in relation to the consent provided by his mother, the applicant indicated that he could no longer locate this consent and instead referred to a letter from his mother dated 3 October 2020 which, amongst a number of other matters, appeared to indicate her consent to the release of information relating to her in her son’s files.
However, following a request from this Office the HSE was in a position to provide a copy of a letter from the applicant’s mother dated 26 July 2020 which appeared to indicate her consent to the release of information relating to her contained in her son’s medical files. In its submission to this Office the HSE acknowledged that consent was received from the applicant’s mother and his nephew for the release of information relating to them in the relevant records. However, it indicated that it is not satisfied that the consent provided by the applicant’s mother and nephew was freely given. In support of that position, the HSE referred to a separate request from the applicant’s mother for access to her medical files. As part of its consideration of that request, the mother’s G.P. stated the following in respect of her medical files:
‘I believe there is information within her records that should be considered for redaction.
I understand it is your role to review the medical records, and to remove any information that pertains to other individuals, and/or is perceived to be a risk to the individual patient concerned if revealed’.
The Investigator in the case contacted the applicant’s mother who indicated that she was aware of the nature and content of the information relating to her contained in her son’s records and consented to the release of the information to him.
Having carefully considered the matter, I consider that the comments made by the G.P. as outlined above do not support the HSE’s contention that the applicant’s mother may not have freely consented to the release of her information contained in her son’s records. I consider these comments to be a simple description of the process which the GP expected the HSE to undertake when considering the mother’s medical records for release to her. In reaching this decision I am particularly influenced by the fact that the applicant’s mother has confirmed to this Office that she is aware of the nature of the information relating to her.
Bearing in mind the provisions of section 22(12)(b) as outlined above, I consider that the applicant’s mother has consented to the release of the information relating to her which is contained on pages 194, 195 and 196 of the relevant records and direct that these records be released to the applicant. For the avoidance of doubt this comprises the following:
- The paragraph redacted at the top of page 194
- The entirety of page 195, with the exception of the text on lines 19 and 20 and the text before “… and …” on line 21
- The paragraph redacted at the bottom of page 196
I find that the relevant information on lines 19 to 21 of page 195 comprises joint personal information relating to the applicant’s mother and a third party who, from the information before me, does not appear to have given consent to the release of personal information. I find, therefore, that section 37 applies to this information.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Section 37(5) of the FOI Act 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 information would be to the benefit of the person to whom the information relates.
I am satisfied that the release of the information at issue would not be to the benefit of the individual concerned and that section 37(5)(b) does not apply. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individual to whom the information relates.
The FOI Act recognises the public interest in the protection of the right to privacy. This is evident both in the language of section 37 and in 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. 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.
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 information that, on balance, outweigh the right to privacy of the individual to whom the information relates. I find, therefore, that subsection (5)(a) does not apply. I find, therefore, that the HSE was justified in refusing access to the relevant information on lines 19 to 21 on page 195 under section 37(1) of the FOI Act.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the HSE. I affirm its decision to refuse, under section 15(1)(a) the applicant’s requests for further records relating to him as held by a named mental health service on the basis that no further records exist or can be found. I vary its decision to refuse access to information contained on pages 194, 195 and 196 of the relevant records on the basis of section 37(1) and I direct the release of the following:
- The paragraph redacted at the top of page 194
- The entirety of page 195, with the exception of the text on lines 19 and 20 and the text before “… and …” on line 21
- The paragraph redacted at the bottom of page 196
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 by the applicant not later than eight
weeks after notice of the decision was given, and by any other party not later than four
weeks after notice of the decision was given.
Stephen Rafferty
Senior Investigator