Whether the HSE was justified in refusing access to certain medical records relating to the applicant in the form requested under section 17 of the Act on the ground that they are copyright protected, and in redacting certain information under section 37(1) on the ground that the disclosure of the withheld information would involve the disclosure of personal information relating to third parties
16 August 2022
Background
In a request dated 5 July 2021, the applicant sought access to her medical file from the HSE North Lee Mental Health Services. On 2 December 2021, the HSE issued its decision. It identified 439 pages of records as falling within the scope of the request. It part-granted the request and withheld certain records in whole or in part under sections 17, 35(1) and 37(1) of the FOI Act. On 21 January 2022, the applicant sought an internal review of that decision, following which the HSE affirmed its original decision. On 1 April 2022, the applicant applied to this Office for a review of the HSE-s decision.
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 correspondence between the applicant and the HSE as outlined above, and to communications between this Office and both the applicant and the HSE on the matter. I have decided to conclude this review by way of a formal, binding decision.
Scope of Review
During the course of the review, the applicant queried whether her medical file could be provided directly to her medical team in the UK. It was explained to the applicant that this Office was not in a position to engage with the HSE on her behalf on the matter, but thatit was open to her to contact the HSE to discuss whether it would be amenable to providing her records to her UK medical team.As the applicant has not engaged with the Investigating Officer since this communication, I do not know whether she contacted the HSE in the manner suggested to her.
This review is solely concerned with whether the HSE was justified in its decision to refuse access to certain medical records relating to the applicant under sections 17, 35(1) and 37(1) of the Act.
Preliminary Matters
Before I address the substantive issues arising, I wish to note the following points.
First, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to 'the world at large' as the Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.
Secondly, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. This means that this Office 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.
Thirdly, while I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.
Finally, the HSE's Schedule of Records does not number each record, but instead numbers each page. I have adopted its numbering in this review.
Analysis and Findings
Section 17 - copyright
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 any one 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).
The HSE refused access to records 18-30 (BHS, BAI, BDI-II, BSS, The Endeavour Programme Diary Card, DBT Behavioural Chain Analysis Worksheet), 59-66 (WASI-II), 68-71 (Test of Premorbid Functioning), 73-102 (HADS & Repeatable Battery for the Assessment of Neurological Status) and 114-136 (The Hayling and Briton Tests & BIBER Cognitive Estimation Test, Diagnostic Interview for ADHD in Adults (3rd Edition; DIVA-5). In its submission to this Office, the HSE said the records are copyright protected and that it did not have the authority to release them. It said the applicant was offered the opportunity to inspect these records in person as an alternative to providing physical copies, as is required under section 17(3), but that to date, the applicant had not contacted the service to take up the offer of reviewing the above records. It is of note that when put to her during the course of the review, the applicant did not comment on the HSE-s offer to allow her to view the records. It is not clear, therefore, whether or not the applicant has an issue with this aspect of the HSE-s decision. However, for the avoidance of doubt, I will address the matter.
Having examined the records, I accept the HSE-s assertion that granting access to a copy of the records would involve an infringement of copyright owned by a parties other than the State, the Government or the Department. I find, therefore, that section 17(2)(b)(ii) applies.
I wish to add that it remains open to the applicant to make arrangements with the HSE to inspect the records as offered by the HSE. It seems to me 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 records. Accordingly, I find that the HSE was justified in deciding to grant access to the applicant by way of inspection only.
Section 35 - confidentiality
Section 35(1)(a) applies to a record containing information given to an FOI body in confidence. In its original decision, the HSE withheld certain parts of a number of records under section 35(1) of the Act. In its submission to this Office, however, the HSE indicated that it wanted to change the exemption it had relied on in withholding this information from section 35 to section 37(1) of the Act. It said that while the information in the records was indeed given in confidence, it was provided by a third party in the preparation of a report by a clinician in the Mental Health Services and as such, contains third party personal information that should not be released to the applicant.
Having examined the records, I am of the view that it is appropriate to consider the withheld records under section 37 of the Act.
Section 37 - third party 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 (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), 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, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).
Section 2 of the FOI Act defines the term -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. The Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition.
The HSE withheld certain information under section 37(1) on the ground that the information was personal information relating to third parties. The redacted information at issue comprises the names, addresses and telephone numbers of individuals other than the applicant. It also contains references to the medical histories of individuals who are related to the applicant. Having examined the records, I am satisfied that all of the information withheld by the HSE is either personal information relating to third parties or joint personal information relating to the applicant and one or more third parties.
Section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office takes the view that neither the definition of a record under section 2 of the Act 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, we are not in favour of the cutting or "dissecting" of records to such an extent.
I find, therefore, that section 37(1) applies to all of the information that was redacted by the HSE under section 37(1).
Sections 37(2) and 37(5) of the FOI Act set out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances set out in section 37(2) arise in this case. Section 37(5) 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.
It has not been argued that releasing the records would benefit the individuals to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances. I will therefore consider section 37(5)(a).
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. Section 11(3) 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 weighing 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 (-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. 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.
I noted above that I am required to disregard the applicant's motives for seeking access to the records. Therefore, I can only consider the purpose for which she seeks the information in so far as it reflects a true public interest factor in favour of releasing the information. The applicant has not put forward any reasons as to why the public interest in releasing third party personal information would, on balance, outweigh the privacy rights of the individuals concerned, nor am I aware of any such public interest factors. I am satisfied that what the applicant has expressed is a private interest in release of the records. While I can appreciate the importance the applicant may attach to accessing the information, the Supreme Court judgments referenced above make clear that in making this decision on the right of access under FOI, I cannot take into account the applicant-s private interests in the grant of access to the records. I find, therefore, that section 37(5)(a) does not apply.
Accordingly, I find that the HSE was justified in its decision to redact certain information from the records under section 37(1) of the FOI Act.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE-s decision. I find that the HSE was justified in its decision, under section 17 of the Act, to grant access to certain of the applicant-s medical records by way of inspection only, on the ground that the giving of access in the form or manner requested would involve an infringement of copyright. I also find that the HSE was justified, under section 37(1) of the Act, in redacting certain information from the records.
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
