OIC-132733-W6J7R3, OIC-132755-N9V9S2, OIC-132747-Q7Y1X2, OIC-132741-B7L0G3, OIC-132736-Q3Z3X3 and OIC-132714-B3B2F7

Whether the HSE was justified in refusing, in full or in part, access to records relating to the applicant under section 37 of the FOI Act

23 March 2023

Background

This decision is a composite decision relating to six requests the applicant made to the HSE. All six requests were dated 20 June 2022 and sought access to records held by six named employees of the HSE containing -�any and all-� information pertaining to him. The applicant-�s requests were made against the backdrop of a HSE recruitment campaign. The applicant in this case acted as a referee for a third party who had been successful in the campaign. The applicant essentially provided two references in respect of the third party. The first reference given by telephone was satisfactory while the second reference provided in writing was unsatisfactory. I also understand that the third party concerned subsequently instigated legal defamation proceedings against the applicant in another jurisdiction.

In its decisions, all dated 16 August 2022, the HSE refused access to records, in full or in part, under section 37(1) of the Act. Following the applicant-�s requests for internal reviews in respect of each refusal, the HSE affirmed all of its original decisions. On 27 November 2022, the applicant applied to this Office for a review of the HSE-�s decision in each case.

I have now completed my reviews in accordance with section 22(2) of the FOI Act. Having regard to the overlapping nature of the requests concerned, I have decided to conclude the reviews by way of a formal, binding composite decision. In carrying out my reviews, I have had regard to the correspondence between the applicant and the HSE as outlined above and to the correspondence between this Office and both parties on the matter. I have also had regard to the contents of the records at issue.

Scope of Review

This review is concerned solely with whether the HSE was justified in its decisions to refuse access, under section 37(1) of the Act, to certain records on the ground that release of the records would involve the disclosure of personal information relating to third parties.

Preliminary Matters

Prior to addressing the substantive issues arising, I would like to make the following preliminary comments.

First, 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 this Office cannot have regard to the applicant's motives for seeking access to the record 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 (considered below).

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, particularly in the context of records which contain sensitive and personal information.

Thirdly, section 18(1) 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 head of the public 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). The Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from a withheld record for the purpose of granting access to those particular sentences or paragraphs.

Fourthly, I wish to explain that 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. As I explained above, our role is confined to considering whether the decision taken by the HSE is in accordance with the provisions of the FOI Act.

Finally, all references to the applicant in this decision can be taken to refer to the applicant and/or his solicitors, as appropriate. 

Analysis and Findings

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 relating to an individual or individuals other than the requester.  The section does not apply where the information involved relates to the requester (subsection (2)(a) refers). However, section 37(7) provides that, notwithstanding subsection (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). In essence, this means that while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, if that personal information is inextricably linked to personal information relating to parties other than the applicant, then section 37(1) applies.

Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information, which are included in the definition without prejudice to the generality of the foregoing definition, including:

(ii) information relating to the financial affairs of the individual,

(iii) information relating to the employment or employment history of the individual,

(vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual,

(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.

(xiv) the views or opinions of another person about 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.

Paragraph (I) does not provide for the exclusion of all information relating to staff of an FOI body. The Commissioner takes the view that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a public servant in the context of the particular position held or any records created by the public servant while carrying out his or her functions. The exclusion to the definition of personal information at paragraph (I) does not deprive staff members in FOI bodies of the right to privacy generally.

The Parties-� Submissions

In his submissions to this Office, the applicant essentially argued that the HSE demonstrated -�no clear basis-� for refusing his FOI requests. He also stated there was a lack of consistency and transparency in the HSE-�s decision-making process in disclosing documents under FOI and in the manner in which it -�defines personal information-�.

In its submissions to this Office, the HSE said that as the applicant is not an employee or a service user, it does not hold a file on him. It stated that the records sought relate to its recruitment process concerning a third party. The HSE said that the records are held on a file relating to the third party, who had nominated the applicant as a referee. During the course of the reviews, the Investigating Officer highlighted a number of instances wherein it appeared that the HSE had released versions of essentially the same records to the applicant with different redactions.

In response to queries concerning an apparent lack of consistency in what was withheld from release, the HSE said that the staff members named in the applicant-�s six requests all worked on the third party-�s file in the Contracting Team during the recruitment process. It said for that reason, much of the information in the records released to the applicant was repetitive. The HSE also said that to date, the applicant has made seventeen FOI requests to it, including a consolidated FOI request for the records sought in this case. It said that the records relating to the 17 FOI requests -�have been reviewed repeatedly by the same resources-�. Essentially, it stated that, while this was -�no excuse for processing errors-�, repeatedly reviewing the same records had contributed to any errors or oversights in the information redacted.

Furthermore, the HSE said that its processes relating to archiving email correspondence mean that each email thread is saved -�after each and every intervention or update to the thread-�. The HSE-�s position was that this results in specific email correspondence being repeated, sometimes -�on multiple occasions-�. It said that in the present case, it -�attempted to minimise the reviews [of duplicate emails] needed-� and noted on the relevant schedule of records -�where duplicates of the same record existed-�. It also said where an additional or new email was included in an email thread, it attempted to review the additional element of the record -�in line with the request and FOI guidelines.-� Essentially, the HSE said that in an effort to avoid considering the same material for release repeatedly, in some places it simply redacted emails which had been released in full or part in another email thread.

My Analysis

I note that section 15(1)(i) of the Act provides for the administrative refusal of a request where the records sought were already released, either to the same or a previous requester, and where the records are available to the requester concerned. While I make no finding on the matter, it seems to me that this provision may have been relevant in this case. However, the HSE did not rely on this section of the FOI Act, therefore, the question I must consider is whether it was justified in refusing access to the records at issue in full or in part on the basis that they contain the personal information of identifiable individuals other than the applicant.

Having carefully reviewed the records at issue, I accept that some of the duplicate records released to the applicant contain more redactions than other versions. I also accept that the HSE has appeared to withhold information from release contained in some records which has been released in others. Nevertheless, I am satisfied that the HSE has adequately explained why this is the case. Furthermore, I am also satisfied that none of the substantive, non-personal information in the records has been withheld from the records released. In the circumstances, having regard to the definition of personal information and section 18(1) as outlined above, I do not consider it appropriate or necessary in this case to require the HSE to re-issue multiple versions of the same records with uniform redactions.

The HSE withheld the records sought, in full or in part, under section 37(1) of the Act. I have carefully examined the documents in question, which comprise various records relating to the recruitment process, including references to the negative reference provided by the applicant and/or later comments made by the applicant in relation to the third party. The records also contain the name, address, email address, date of birth and candidate number of the third party for whom the applicant acted as a referee, as well as information relating to the third party-�s financial affairs, employment and employment history. The records also contain details of correspondence between the applicant/the third party and the HSE concerning the recruitment process, issues arising on foot of the reference provided and/or subsequent complaints/FOI requests.

Having examined the records at issue, I am satisfied that the release of this information would involve the disclosure of personal information relating to individuals other than the applicant. The records also contain what I am satisfied is personal information relating to the applicant. However, I am also satisfied that such information is inextricably linked to personal information relating to the third party i.e. it is joint personal information relating to the applicant and the third party, and cannot be separated. It may well be the case that some of the withheld information is generally known to the applicant. That being said, I must have regard to the fact that a record released under the FOI Act effectively amounts to disclosure to the world at large given that the Act imposes no constraints on the uses to which information released under FOI may be put.

Accordingly, I am satisfied that the release of the information in the relevant records would involve the disclosure of personal information relating to individuals other than the applicant, as well as joint personal information concerning the applicant and a third party, and that section 37 applies. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply in this case.

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 public interest that the right to privacy of the individual to whom the information relates should be upheld, 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 this case.

On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person(s) 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. 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 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 ("the Rotunda case"). It is noted that a 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.

I outlined above that I am required to disregard the applicant-�s reasons for making his FOI requests except insofar as it can be construed as a public interest. I understand from correspondence provided to this Office that the applicant is seeking the records in the context of legal defamation proceedings taken against him in another jurisdiction by the third party for whom he acted as a referee. While I can appreciate the importance to the applicant that he gain access to the information contained in the records at issue, it seems to me that this is a private, as opposed to a public interest.

In the circumstances of this case, I cannot identify any public interest reasons in favour of release of the withheld information. I find that the public interest in granting access to the withheld information does not, on balance, outweigh the right to privacy of the individuals concerned. I find, therefore, that section 37(5)(a) does not apply and that the HSE was justified in refusing access to the information withheld on the basis of section 37(1) of the FOI Act.

Decision

Having carried out my reviews under section 22(2) of the FOI Act, I hereby affirm the HSE-�s decisions. I find that the HSE was justified in refusing access to the withheld information on the basis that it is exempt under section 37(1) of the Act.

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.

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Sandra Murdiff

Investigator