Whether the HSE was justified in refusing access to records relating to a safeguarding referral

14 March 2023

Background

One of the HSE-�s responsibilities is to deal with concerns regarding the possible abuse or neglect of vulnerable persons (safeguarding referrals).

The applicant-�s FOI request of 27 April 2022 referred to a -�safeguarding referral in which [he] was identified and in which allegations were made against [him]-�. He requested -�any and all data that [he is] entitled to receive under the [FOI Act] related to the safeguarding referral-�. The HSE-�s decision of 18 May 2022 granted full and partial access to a very small number of records. It refused the rest under sections 35(1)(a) (confidential information) and 37(1) (personal information) of the FOI Act.

The applicant sought an internal review on 15 June 2022. The HSE-�s internal review decision of 28 June 2022 affirmed its decision on the request.

On 27 December 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 and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the HSE and the applicant. I have also examined the records at issue and had regard to the provisions of the FOI Act.

Scope of Review

The scope of the review is confined to the sole issue of whether the HSE-�s decision on the applicant-�s request was justified under the provisions of the FOI Act.

Preliminary Matters                                                                        

As will be set out in more detail later in the decision, the applicant is dissatisfied with the HSE-�s handling of the safeguarding referral. He says that the HSE did not follow its own policy and that he was deprived of his rights. He says that, when assessing the safeguarding referral, the HSE could have created and given to him a record containing the substance of the allegations, with exempt information omitted. He says that the HSE applies different standards when complaints are made about its own staff. He says that the HSE is using the FOI Act to conceal information to which he is entitled, and that the HSE-�s original decision maker had a conflict of interest because she was involved in assessing the referral.

However, section 13(4) of the FOI Act requires me to disregard any reasons that the applicant has or may have for making his FOI request. Furthermore, this review does not extend to examining, making findings on or taking account of how the HSE performs its functions generally or on how it administers the FOI Act. I cannot take account of the applicant-�s views on these matters. For avoidance of doubt, the FOI Act does not require the HSE to create a record in response to the applicant-�s request.

Section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. For this reason, the descriptions I can give of the records and of the reasons for my decision are somewhat limited.

Finally, release of records under FOI is generally understood to have the same effect as publishing them to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.

Analysis and Findings

Having examined the records, in my view section 37 of the FOI Act is the more appropriate provision to consider at the outset.

Section 37 -� personal information

Section 37(1)

Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information. For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential (section 2 of the FOI Act).

Section 2 also includes a list of 14 non-exhaustive examples of what must be considered to be personal information. The Supreme Court judgment inThe 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-�) found that, where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met. The examples include (i) information relating to the medical history of the individual and (xiv) the views or opinions of another person about the individual.

The applicant asks this Office to review -�the decision to withhold the substance of the allegations made-� about him. He says that the requested information is about him and nobody else. He says that he did not request the identity of the referrer or personal information about the vulnerable person. He says that it is wrong for the HSE to imply that he asked a social worker for the referrer-�s identity.

I have no role in examining what the applicant said in his general contacts with the HSE.  However, and while he may have intended otherwise, the wording of the FOI request is such that it is not confined to information only about the applicant. It seeks -�any and all data -� related to the safeguarding referral-�, and therefore covers details such as names of, and other information about, third parties.

The applicant refers to the decision inCase No 98092, which concerned a letter sent to an FOI body by a number of angling clubs, objecting to the payment of a grant to the relevant requester. The FOI body released the text of the letter but withheld the signatories-� names and addresses. The applicant notes that the Commissioner took account of a personal dispute in finding that the then equivalents of sections 35 and 37 did not apply to those names and addresses. He provides details regarding his position that the safeguarding referral in this case arose from a family dispute.

For reasons set out below, I do not consider the decision in Case No 98092 to be relevant to my review. It is also important to note that a decision in one case does not necessarily set a binding precedent for other cases. Rather, each case is determined on its own merits, having regard to the contents of the records and the relevant facts and circumstances.

In Case No 98092, the then Commissioner accepted that the letter contained personal information about the requester. He found that it did not contain personal information about the signatories, because the letter comprised the signatories-� views on the business of the FOI body (which the FOI Act explicitly provides cannot be considered to be personal information). He noted also that the signatories were acting in a representative capacity for the angling clubs and not in a personal capacity. However, the records at issue here are entirely different. They concern a very sensitive and personal issue (a safeguarding referral) rather than how the HSE is performing its functions.  While they refer to the applicant, they also refer to other individuals, including a vulnerable person. A small amount of the details refer entirely to identifiable individuals other than the applicant.

In Case No 98092, taking account of details such as the circumstances of the letter-�s creation, the Commissioner found that the withheld names and addresses did not meet the definitions of personal information. However, at that time, it was this Office-�s position that the requirements at (a) or (b) of the definition had to be met in order for information to be considered as personal. The Supreme Court later clarified the approach to be taken, which I have set out above. Bearing section 25(3) in mind, I am satisfied that the details at issue in this case contain information of a type that is covered by various examples of what comprises personal information. This is sufficient to determine the matter.

However, I would accept in any event that records relating to a safeguarding matter would be held by the HSE on the general understanding that they would be treated as confidential. I am also satisfied that the records also contain information that would ordinarily be known only to the individuals referred to in the records, or members of the family, or friends, of the individuals concerned. This Office has no role in determining either whether the HSE should have provided the applicant with details of the allegations received when it was assessing them, or how this might be done. Neither does this Office have any role in determining whether an allegation is malicious or otherwise.

The applicant says that section 37 may have some relevance to joint personal information, but suggests that he could be given the substance of the allegations, separated from details identifying the referrer and from personal information of the vulnerable person. He says also that certain of the details already released enable a third party to be identified, even though the HSE relied on sections 35 and 37 to withhold other third party information. He argues that the HSE is applying the Act inconsistently and incorrectly.

I am satisfied that even if names and/or any other specific references to third parties were withheld from the records at issue, individuals would be identifiable from the context and content of the remaining details, including from details comprising the substance of the allegations. I am satisfied that the question of partial access to the records (section 18 of the FOI Act) does not arise in this case.

In summary, I am satisfied that the personal information relating to the applicant as contained in the records is inextricably linked to that of other individuals. Section 37(7) provides that, notwithstanding section 37(2)(a) (see below), access to a record shall be refused where access to it 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 (joint personal information).

I find that the relevant withheld records and parts of records are exempt under section 37(1) of the FOI Act. It is not relevant to this finding whether the details already released may enable third parties to be identified. I will now go on to consider sections 37(2) and (5).

Section 37(2) - exceptions to section 37(1)

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. Section 37(2)(a) provides for the grant of access to personal information relating to the requester. I am satisfied that no further information falls for release further to this provision of the FOI Act. I have already outlined the provisions of section 37(7). As also explained, while most of the withheld details comprise joint personal information, I do not consider that personal information relating to the applicant can be separated from that of other individuals.I am satisfied that the remaining circumstances set out in section 37(2) do not arise.

Section 37(5)(a) - the public interest

In considering section 37(5), I consider that only section 37(5)(a) is relevant in this case. This section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.

On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had regard to further comments of the Supreme Court in the Rotunda case. It is noted that a public interest should be distinguished from a private interest.

On the matter of 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 had regard to the findings of the Supreme Court inThe 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 in this decision 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 says that he has been deprived of his rights to be made aware of, and to defend himself against, allegations made about him. He says that the public interest is not served by denying people their Constitutional right to fair procedures. He says that the HSE-�s safeguarding policy says that persons identified in any complaint have a right to be made aware of the information received. He says that he should have been given details of the substance of the allegation with exempt information omitted. He says that the referrer should have been told, and therefore expected, that they have no absolute right to anonymity, and that anyone identified in the referral has a right to be made aware of the information received. He says that giving him the details he seeks could therefore not deter people from making similar referrals in future.

The applicant says that the HSE did not inform him of either the allegations or that it had met the vulnerable person and another party before interviewing him. He says that he should have been given an opportunity to assist in resolving the matter. He says that the HSE has not acknowledged that it does not follow its own policies or explained why. He refers to the HSE policy concerning complaints made about its own staff i.e. that it does not normally investigate anonymous complaints and that it cannot guarantee the confidentiality of a complainant-�s identity. He says that the difference between the rights that the HSE affords to its own staff, and those afforded to him and potentially the public in general, is discrimination. He says that a social worker initially undertook to give him details of the information received and agreed that it was fair to so. He says that she then told him to make an FOI request and was subsequently removed from the case, which he says is significant.

The applicant says that there is sufficient legislation and precedent for this Office to rule that he is entitled to the requested information, particularly having regard to the particular circumstances of his case and the decision in Case No 98092. As noted already, he says that the referral was made in the context of a family dispute, and that the HSE did not follow its policies for mitigating against such scenarios.

I have explained already that the decision in Case No 98092 does not create a precedent for this case and, in particular, why the circumstances of both are different. I have no role in examining the HSE-�s procedures or the basis on which the referral was made.

Many of the arguments made by the applicant reflect his own private interests in obtaining the records, rather than public interests for the purpose of the FOI Act. I accept that disclosure of the remaining records and parts of records would give the applicant insight into the nature of the safeguarding referral and into the HSE-�s handling of the matter.

However, this does not mean that there should be no protection of privacy rights of other individuals. While the applicant says that he has been deprived of his rights, I do not believe it is appropriate for me to direct the release in the public interest of third party personal information, effectively to the world at large, on the basis that the applicant is dissatisfied with the HSE-�s actions, or indeed the actions of others. Neither do I have any remit to consider, or make findings on, the merits of such actions.

I am satisfied that placing the withheld details in the public domain would significantly breach the rights to privacy of identifiable individuals other than the applicant. Having regard to the nature of the information at issue, I am aware of no public interest factors in favour of the release of the specific withheld information 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.

In the circumstances, there is no need for me to consider the HSE-�s reliance on section 35 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 on the basis that the records are exempt under section 37(1) of the FOI 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.

Anne Lyons
Investigator