Whether the HSE was justified in refusing access to records relating to a named nursing home for the period 31 March 2020 to 15 May 2020

19 October 2022

Background

In a request dated 26 October 2020, the applicant sought access to all correspondence, emails, reports written, phone calls and video conference calls sent to, including or originated by a named HSE employee concerning a named nursing home. The applicant specified that the request was to cover the period 30 March 2020 to 15 May 2020.

In its decision dated 10 June 2021, the HSE identified 105 pages of records that fell within the scope of the applicant-�s request. It refused the request, citing sections 30(1)(a) and (b) and section 37(1) of the Act as the basis for its decision. On 8 July 2021, the applicant sought an internal review of the HSE-�s decision. On 2 September 2021, the HSE issued its internal review decision, wherein it affirmed the refusal of the request. On 18 November 2021, the applicant applied to this Office for a review of the HSE-�s decision.

During the review, the HSE reverted to indicate that it had undertaken a further comprehensive examination of the records that it had identified as falling within the scope of the applicant-�s request, following which it said a number of the records had been previously released to the applicant in response to previous FOI requests she had made. The applicant subsequently indicated her agreement that the records that had been previously released to her could be removed from the scope of this review.

Furthermore, the HSE stated that, following its further review, it now considered that certain of the remaining records should be released in full to the applicant, specifically pages 69, 72, 22,28,79,82, 83, 84, 85, 86, 87, 88, 91 and 105. The HSE subsequently confirmed that the relevant records had been released. The HSE further stated that, in relation to the remaining records at issue, namely pages 1, 6, 7, 12, 16, 17, 18, 25, 35, 43, 44, 47, 48, 49, 67, 68, 70, 71, 72, 74, 75, 89, 90, 92 and 93, its view was that certain information in the records was exempt from release under section 37(1). It released these records in part, with redactions made under that section. In addition, the HSE argued that sections 30(1)(c) and 37(1) applied to page 76 in full.

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 submissions made by the HSE and the applicant-�s comments in her application for review. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is solely concerned with whether the HSE was justified in redacting, under 37(1) of the FOI Act, certain information from records 1, 6, 7, 12, 16, 17, 18, 25, 35, 43, 44, 47, 48, 49, 67, 68, 70, 71, 72, 74, 75, 89, 90, 92 and 93, and in refusing access, under sections 30(1)(c) and 37(1), to record 76.

Analysis and Findings

Section 30(1)(c)

As outlined above, the HSE relied on section 30(1)(c) of the FOI Act as a basis to withhold page 76. Section 30(1)(c) provides that an FOI body may refuse to grant an FOI request if access to the record concerned could, in its opinion, reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body.

It is important to note that this exemption does not contain a harm test (unlike section 30(1)(a) and 30(1)(b)). It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc.  There is no requirement to take a view on the consequences of the disclosure of those positions or that disclosure would have an adverse effect on conduct by the Government or the FOI body of its negotiations. However, this matter may be relevant to the public interest test in section 30(2).

An FOI body seeking to rely on section 30(1)(c) is required to identify the relevant negotiations at issue, and must show must show that the release of the record could reasonably be expected to disclose positions taken (or to be taken) or plans etc. used or followed (or to be used or followed) for the purpose of any such negotiations.

In its submissions, the HSE said page 76 contained matters relating to the management of staff and issues of redeployment, including industrial relations. I have examined page 76 and find as follows. Firstly, while I note that the HSE did not specify in its submissions a particular negotiation (or negotiations) at issue in the records, I consider that the content of the records does reveal the existence of such negotiations. In particular, I note that page 76 specifically references ongoing discussions between the HSE and a named trade union in relation to the proposed deployment of HSE nursing staff in private nursing homes. I therefore accept that this requirement of section 30(1)(c) has been satisfied.

However, I am not satisfied that the release of the record could reasonably be expected to disclose positions taken (or to be taken) or plans etc used or followed (or to be used or followed) for the purpose of these negotiations. It seems to me that all that is disclosed by page 76 is that certain discussions exist in relation to the deployment of staff and that no agreement has been reached. I cannot see that page 76 reveals any information related to the positions or plans of the HSE in relation to such negotiations. In my opinion, nothing in the record discloses, for example, any proposal for settlement or compromise on the part of the HSE, or any indications of 'fall-back' positions, such as might constitute a negotiating position. Similarly, there appears to be no information in the record that was created for the purpose of negotiations, or that relates to the HSE-�s negotiating strategy or its opening position with a view to further negotiation. Accordingly, I do not accept that the record reveals the positions taken (or to be taken), plans etc. used or followed (or to be used or followed) by the HSE (or any other FOI body) for the purposes of section 30(1)(c). In those circumstances, I find that page 76 is not exempt from release under section 30(1)(c) of the Act.

Section 37(1)

As outlined above, the HSE relied on section 37(1) of the FOI Act as a basis to redact information from pages 1, 6, 7, 12, 16, 17, 18, 25, 35, 43, 44, 47, 48, 49, 67, 68, 70, 71, 72, 74, 75, 89, 90, 92 and 93. It also relied on section 37(1) to withhold page 76 in full. Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the FOI Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition.

In addition, Paragraph (I) of section 2 of the Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied 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 aforesaid ...". Similar information is excluded in the case of service providers under Paragraph (II) of section 2.

In its submissions regarding section 37(1), the HSE stated the personal information that it had redacted from the records comprised the names and email addresses of individuals who worked for third party organisations and bodies. In addition, it stated that it had redacted health information of patients and staff of the nursing home from pages 1, 6, 7, 89 and 92 of the records.

The HSE argued that information that, on the face of it, did not relate to an identifiable individual could still constitute personal information if it allowed individuals to be identified, and that this was the case in relation to the information redacted from the records at issue. It indicated that it in redacting material from the records, it had considered the right to privacy of patients and staff in the nursing home. It stated that, as the nursing home had received and continued to receive media coverage, it was concerned that certain individuals associated with the nursing home would be rendered identifiable by the release of the unredacted records.

I have examined copies of the records at issue and the redactions the HSE proposes to make in respect of each, and find as follows. Firstly, I note that a number of redactions to the records relate to the names, towns or counties of residences, private email addresses and work email addresses (where the place of work is not an FOI body) and the working arrangements of individuals. These redactions are made to pages 12, 18, 35, 43, 44, 47, 48, 70, 71, 72, 74, 75, 89 and 93. As I have outlined above, the FOI Act details 14 specific categories of information that is personal information without prejudice to the generality of the definition. This includes, at category (iii), information relating to the employment or employment history of the individual and, at category (xii), the name of the individual (where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual). Based on these provisions of the FOI Act, I consider that the redactions listed in this paragraph fall within the definition of personal information in section 2.  As such, I find that section 37(1) applies to all such information. For the avoidance of doubt, several of the records refer to only the first name, or the first name and job title, of certain nursing home staff. Where such staff, even where they are not named in full, are publicly identifiable by reference to their first name and/or job title, I find that section 37(1) applies.

A number of other redactions to the records relate to the mobile numbers of HSE staff.  Specifically, mobile numbers have been redacted from pages 12, 16, 17, 18, 47, 48, 71, 74, 90, 92 and 93. From correspondence exchanged with the HSE in the course of a previous review involving the same parties (Case OIC-111267), my understanding is that some of these withheld numbers were the personal mobiles of individuals, but that certain HSE personnel are provided with a HSE mobile phone for Health and Safety purposes. The HSE also explained in this correspondence that many of its staff were lone working operational in the field and that, on occasions, a staff member will provide a mobile number to a service user on a 'need to know' basis in the course of provision of support and services to the service user. The HSE stated that it was not intended that such numbers would be available in the public domain and for this reason, the mobile numbers were redacted. It added that the implications of working in a COVID environment had involved some staff members utilising personal mobile numbers also. Having considered the HSE-�s submissions, I accept that the mobile phone numbers contained in the records at issue comprise personal information relating to the holders of those phones. As such, I accept that section 37(1) applies.

I am not satisfied that the definition of personal information in section 2 of the FOI Act applies to certain of the other information that the HSE has redacted from the records. In particular, I note that a number of redactions relate to the email address of a particular HSE staff member. Specifically, this email address appears at (and has been redacted from) pages 6, 35, 70 and 72. Although not an HSE address, the email address from which this HSE officer has corresponded throughout the records appears to relate to an organisation that operates under the aegis of Dundalk Institute of Technology, which is also an FOI body. As such, on the basis of the exclusion from the definition of personal information provided for in Paragraph (I) of section 2 of the Act, I find that this email address is not personal information and as such, section 37(1) does not apply. I should note that this same email address was deemed not to constitute personal information in our decision in Case OIC-111267, and it is unfortunate that in this instance the HSE continued to seek to withhold the same information that we have previously been found not to be exempt from release under section 37(1) of the FOI Act.

Furthermore, I note that the remainder of the information at issue includes material relating to both the staff and the residents of the nursing home, such as information relating to the contraction of Covid-19 and the deployment of staff. In so far as the disclosure of such information would involve the disclosure of personal information relating to identifiable individuals, I am satisfied that section 37(1) applies. However, in many instances, it seems to me that the individuals concerned are not identifiable and as such, section 37(1) cannot apply. The information that I consider does not relate to an identifiable information (and to which section 37(1) does not apply) is as follows:

• the second redaction to page 1
• the first redaction to page 7
• the first and second redactions to page 16
• the redactions made to page 25
• the second redaction to page 47
• the second, third, fourth, and seventh redactions to page 67
• the sixth and seventh redactions to page 70
• the first redaction to page 71
• the first and second redactions to page 75
• the first and second redactions to page 92.

In addition, in my opinion, the eighth and ninth redactions to page 67, which relate to an email from a named member of staff of the Health Information and Quality Authority (HIQA) do not fall within the scope of section 37(1). HIQA is itself an FOI body and thus the relevant redactions fall within the exemption to the definition of personal information provided for by Paragraph I of section 2 of the FOI Act.

Finally, I note that at the bottom of page 48 and the top of page 49, information relating to dial-in details for a conference call has been redacted. I do not consider this to be personal information for the purposes of section 2 of the FOI Act, and as such, I find that section 37(1) does not apply.

Other provisions of section 37

In relation to those withheld records and redactions to which I have found section 37(1) to apply, I must also go on to consider the other provisions of section 37 to which section 37(1) is subject. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply. 

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 section 37(5)(b) of the Act does not apply.

In relation to the applicability of section 37(5)(a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual or individuals to whom the information relates. 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, which provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and -�there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure-�. 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.

In relation to the issue of the public interest, it is also important to have 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] IESC 26 ("the Rotunda case"). It is noted that a true public interest should be distinguished from a private interest.

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. 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 that I have identified in the records as falling within the scope of section 37(1) of the Act is of an inherently private nature. Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find that the public interest in granting access to the information at issue does not, on balance, outweigh the right to privacy of the relevant individuals. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that the HSE was justified in refusing access, under section 37(1) of the Act, to the information I have identified as comprising personal information.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the HSE. I find that page 76 of the records at issue is not exempt from release under section 30(1)(c) or section 37(1) of the FOI Act, and direct the release of that record. I find that the HSE was justified in withholding the information that I have identified above as falling within the scope of section 37(1) of the FOI Act. However, I direct the release of the information in the records that I have found section 37(1) not to apply, namely

• the email address of a particular HSE staff member redacted from pages 6, 35, 70 and 72,
• the second redaction to page 1,
• the first redaction to page 7,
• the first and second redactions to page 16,
• the redactions made to page 25,
• the second redaction to page 47,
• the second, third, fourth, and seventh redactions to page 67,
• the sixth and seventh redactions to page 70,
• the first redaction to page 71,
• the first and second redactions to page 75, and
• the first and second redactions to page 92.

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 requester 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