Whether the NAS was justified in refusing access to the transcript of a specified emergency call and a Patient Care Report (PCR) relating to the same incident under section 37(1) of the FOI Act

3 February 2023

Background

All references to the applicant in this case can be taken to relating to the applicant or her representative, as appropriate.

On 22 September 2022, the applicant made a request to the NAS for a copy of the transcript of an emergency call and the PCR relating to the same specified medical incident. On 27 September 2022, the NAS refused her request under section 37 of the FOI Act, on the ground that the records comprised the personal information of a third party. The applicant requested an internal review of the NAS-�s decision on 29 September 2022. On 20 October 2022, the NAS affirmed its original decision.

In a letter received on 3 November 2022, the applicant applied to this Office for a review.

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 comments made by the applicant in her application for review and to the submissions made by the NAS in the course of the review. 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 NAS was justified in its decision to refuse access, under section 37(1) of the FOI Act, to the records sought.

Analysis and Findings

Section 37

The NAS refused access to the call transcript and PCR under section 37(1) of the FOI Act.

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. The section does not apply where the information involved relates to the requester (subsection (2)(a) refers).

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 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.

Certain information is excluded from the definition of personal information, as set out in section 2 of the FOI Act. Paragraph (I) provides that where the individual is or was a staff member, the definition does not include 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 those functions.

The records at issue comprise a transcript of an emergency call made by a third party on behalf of another individual in need of medical assistance and a patient care report relating to the same individual. During the course of this review, the NAS informed this Office that it was unable to locate the PCR in question. While I have not seen the particular record sought, I understand that a PCR is routinely completed by pre-hospital emergency care practitioners. I also understand that this form is used to record various clinical and medical details relating to the incident which required medical assistance and the treatment provided.

With regard to Paragraph (I) as outlined above, I am satisfied that the information recorded by the staff member who received the emergency call is personal information relating to the patient and their family member. In the circumstances, I am also satisfied that the information recorded on a PCR is the personal information of the patient concerned, and not of the staff member(s) who completed the form.

In the circumstances of this case, I am satisfied that the release of both records would involve the disclosure of personal information relating to individuals other than the applicant and that section 37(1) applies.

Section 37(2)

There are some circumstances, provided for at section 37(2), in which the exemptions at section 37(1) do not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) the information contained in the record does not relate solely to the applicant; (b) the third party/parties has/have not consented to the release of their information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I find that section 37(2) does not apply to the withheld information.

Section 37(5)

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 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 in this case would not be to the benefit of the individuals to whom the information relates and that section 37(5)(b) does not apply.

In relation to the applicability of 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 inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors[2020] IESC 57 (-�the eNet Case-�), 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 inThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26. 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.

In considering where the balance of the public interest lies in this case, it is important to note that the release of records under FOI is regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act may be put. Having regard to the nature of the information contained in the records in this case, I have not been able to identify any sufficiently specific, cogent and fact-based reason for finding that the public interest that the request should be granted outweighs the right to privacy of the individual(s) to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that section 37(1) of the Act applies to the records sought and that the NAS was justified in refusing access to the records on that basis.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the NAS-�s decision to refuse access to the records sought on the basis of section 37(1) of the FOI Act. I find that the public interest, on balance, does not favour the release of the records at issue.

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.

Sandra Murdiff
Investigator