Whether the HSE was justified, under sections 35(1)(a), 37(1) and 42(m) of the FOI Act, in refusing access to records concerning complaints made under the HSE safeguarding policy

16 March 2023

Background

In a request to the HSE dated 12 April 2021, the applicant said that two complaints had been made against her under the safeguarding policy and that she was seeking copies of these complaints and any other similar data that mentioned her. In a decision dated 5 May 2021, the request was refused under sections 35(1)(a) and 37(1) of the FOI Act. On 12 May 2021, the applicant submitted a request for an internal review of the decision. The applicant did not receive an internal review decision within the statutory timeframe and applied to this Office on 29 November 2022 for a review. It emerged that the HSE had no record of the request for internal review being received. However, on 14 December 2022, it wrote to the applicant and set out its effective decision on the matter. It affirmed the decision to refuse the request, and said that in addition to the exemptions claimed in the original decision, it was also refusing the request under section 42(m) of the FOI Act. On 17 December 2022, the applicant sought a review by this Office of the HSE-�s effective 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 the submissions made by the HSE and to the contents of the records themselves. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The records at issue in this case comprise a number of files opened by the Safeguarding & Protection Team in the relevant local area. The files each contain details of the concerns raised in relation to a vulnerable adult, the various steps taken by the Safeguarding & Protection Team to investigate the concerns, and a closing summary.

This review is concerned solely with whether the HSE was justified in refusing access to all of the records contained within the above files under sections 35(1)(a), 37(1) and 42(m) of the FOI Act.

Preliminary Matters                                                                                                    

Firstly, while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. 

Secondly, section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, it is important to note at this point that any reason that the requester gives for the request shall be disregarded. This means that I 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, section 18 of the FOI 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. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Finally, it is important to note that the release of records under the FOI Act is regarded, in effect, as release to the world at large, given that the Act places no restrictions on the uses to which records released under FOI may be put.

Analysis and Findings

Having regard to the contents of the records and the circumstances of the case, it seems to me that section 37 is most relevant to the question of whether the HSE was justified in refusing access to the records in their entirety, and I have examined it first.

Section 37: Personal information

Section 37(1)

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, including personal information relating to a deceased individual. 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).

In essence, this means that section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester. However, if that personal information is inextricably linked to personal information relating to parties other than the applicant, then section 37(1) applies.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, 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. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual, (ii) information relating to the financial affairs of the individual, and (xiv) the views or opinions of another person about the individual.

In its submissions to this Office, the HSE explained that the records at issue in this case relate to the implementation of its safeguarding policy for vulnerable adults further to allegations of abuse being received. It said that they contain personal information relating to a number of people, most importantly the vulnerable adult at the centre of the allegations of abuse, which they investigated in line with the safeguarding policy.

Having examined the records under review, I am satisfied that they contain personal information relating to a third party or third parties other than the applicant, as well as joint personal information relating to the applicant and a third party. With regard to the joint personal information, I considered whether the records could be redacted in such a way as to release the information relating to the applicant only. I find that the personal information relating to the applicant is inextricably linked to personal information of other third parties and that the records cannot be redacted so as to allow for the release of information relating solely to the applicant. I have taken account of section 18 in reaching this conclusion.  

I find, therefore, that the release of the records would involve the disclosure of personal information relating to an individual or individuals other than the applicant and that section 37(1) 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) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances provided for in section 37(2) apply to the information concerned. That is to say, the information contained in the records does not relate solely to the applicant; the third parties have not consented to the release of their information; the information is not of a kind that is available to the general public; the information at issue does not belong to a class of information which would or might be made available to the general public; and the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

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. No evidence has been put forward to suggest that the release of the records at issue would be to the benefit of the third parties concerned and I find that section 37(5)(b) does not apply in this case.

As to whether section 37(5)(a) applies, the question I must consider is whether the public interest in releasing the information outweighs, on balance, the public interest in protecting the privacy rights of the individuals to whom the information relates. I have had 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] 1 IR 729, [2011] IESC 26) (-�the Rotunda case-�). It is noted that a true public interest should be distinguished from a private interest.

In considering the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have also had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also 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.

The applicant did not make any arguments in relation to the public interest. While she made no explicit reference as to why she was seeking the records, either in the correspondence with the HSE or with this Office, I think it is reasonable to infer, from the wording of the FOI request, that she was seeking to understand the nature of the allegations made against her. As noted earlier, I am required to disregard the applicant-�s reasons for the FOI request except where it might be considered as a public interest factor in favour of release of the information at issue. While I appreciate why the applicant might want to access the records in this case, I am bound to treat this as a private rather than a public interest.

In its submissions to this Office, the HSE said that having considered the public interest factors in favour of release and in favour of disclosure, it was not satisfied that there was sufficient public interest in favour of release that would warrant the breach of the third parties-� rights to privacy. In reaching this conclusion, it said that it considered the public interest in the public knowing how a public body performs its functions and makes decisions, as well as knowing that information held by public bodies is accurate. It also acknowledged a public interest in members of the public exercising their rights under the FOI Act. However, it said that this was outweighed by the public interest in protecting the privacy rights of individuals, as well as the public interest in safeguarding the flow of information to public bodies in order to protect vulnerable adults.

I have carefully considered the records at issue and the context in which they were created, and have had regard to the fact that release under FOI is effectively release to the world at large. I am aware of no public interest factors in favour of the release of the records at issue in this case that, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

As I have found the records in their entirety to be exempt from release under section 37(1), I do not need to consider the applicability of section 35(1)(a) or 42(m).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE-�s decision. I find that it was justified, under section 37(1), in refusing access to the records sought.  

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.

Emer Butler
Investigator