Whether the HSE was justified in refusing access to information contained in a record concerning a recruitment process relating to the applicant under section 37(1) of the FOI Act

22 March 2023

Background

In a request dated 13 September 2022, the applicant sought access to records in relation to his application for a post within the HSE in 2020, including all correspondence and notes on file relating to his application, the HSE-�s retraction of a job offer, his appeal of its decision, the appeals process and the HSE-�s response to that appeal. On 26 September 2022, the HSE issued a decision part granting the applicant-�s request. It identified four records, three of which it released in full. It released the remaining record in part under section 37(1) of the FOI Act. On 27 September 2022, the applicant applied for an internal review of the HSE-�s decision. On 21 October 2022, the HSE affirmed its original decision on the same grounds. On 3 February 2023, 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 the applicant-�s comments in his application for review and to the submissions made by the FOI body in support of its decision. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

The records schedule provided to this Office by the HSE for the purposes of this review listed four records which were not numbered. Two of the records were unnamed, including the record which contains the information withheld. This record comprises 69 pages, which are internally numbered as documents 1-37. I have used this numbering scheme for ease of reference.

Scope of Review

This review is concerned solely with whether the HSE was justified in refusing to release certain information contained in one record under section 37(1) of the FOI Act.

Preliminary Matters 

It is important to note that under section 13(4) of the FOI Act, in deciding whether to grant or refuse a request, any reason that the requester gives for seeking access to the records at issue, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the record where the FOI Act requires a consideration of the public interest (addressed below).

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 other than the requester. 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 (iii) information relating to the employment or employment history of the individual and (v) information relating to the individual in a record falling within section 11(6), i.e. personnel records of staff of FOI bodies.

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held 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 his or her functions (Paragraph I refers). Paragraph II provides that in a case where the individual is or was a service provider, their name

or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service, is excluded from the definition of personal information.

However, the exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally and I am satisfied that this also applies to service providers.

The record at issue in this case comprises 37 documents. The HSE released the majority of the information in this record, except for certain information contained on one page of in document 6.

In his application for a review to this Office, I note that the applicant indicated that he was of the view that -�another person [was] mentioned-� in this record and that -�their identity cannot be disclosed to protect them from being challenged-�. I also note that the applicant is of the view that he has been denied access to records which he believes to contain inaccurate information. I have carefully examined the record concerned and I can confirm that the information withheld solely comprises the email addresses of other individuals who had applied for the same post as the applicant. These individuals, as well as the applicant in this case, had been -�bcc-�d-� (i.e. copied on an email in such a way that the recipients could not see who else had received a copy of the correspondence) on email correspondence from the HSE concerning the recruitment process in question.

While section 25(3) precludes me from revealing the content of an exempt record, I can state that it seems likely that at least some of the applicants applying for the position in this case were staff members of the HSE or acting as service providers to the HSE. However, this Office takes the view that an individual-�s decision to apply for a new position, even within the same organisation, would not be taken "in the course of and for the purpose of the performance of the functions" of the position the individual previously held. Accordingly, I am satisfied that the exception to the definition of personal information does not apply in this case.

Having examined the redacted parts of the record at issue, I am satisfied that the release of the withheld information would involve the disclosure of personal information relating to 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. Some of the subsections serve to disapply subsection (1), namely subsections (2) and (5).

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 those circumstances arise in this case, namely (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of the 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 serious and imminent danger to the life or health of the individual. Therefore, I find that section 37(2) does not apply in this case.

Section 37(5)

Section 37(5) provides that a request for records that would be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should 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 section 37(5)(b) of the Act does not apply in this case.

On the matter of whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy of the person to whom the information relates, I should note that 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.

Both the language of section 37 and the Long Title of 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 the 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 with 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. It is also relevant to note that the release of records under FOI is, in effect, regarded as release 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.

In its submissions, the HSE stated that it considered the public interest in ensuring that personal information held by public bodies is accurate and the public interest in the accountability of public bodies to favour the release of the information withheld. It also stated that it considered the public interest in public bodies protecting the privacy of individuals dealing with them to weigh against the release of the information sought.

As noted above, the sole information withheld from release in this case is the email addresses of other individuals who had applied for the same positon as the applicant in this case. In considering where the balance of the public interest lies, 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 FOI Act may be put.

In respect of the HSE-�s submissions, it is not clear to me how the release of third party email addresses would meet the public interest in ensuring that personal information held by it is accurate or that it would ensure or enhance the accountability of public bodies. In his request for internal review, the applicant indicated that he considered that his right to access the information in the record concerned to outweigh the right to privacy of the individuals concerned. Having considered his position, it seems clear to me that what the applicant is expressing is a private rather than a public interest. It is clear from the above judgments that I cannot, in making this decision on the right of access under FOI, take into account the applicant-�s private interests in the grant of access to the records withheld.

Having examined the information at issue, I have not been able to identify any sufficiently specific, cogent and fact-based reason for finding that the public interest in granting access to the information outweighs the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

In conclusion, therefore, I find that the HSE was justified in refusing to grant access to the information withheld on the basis of 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 to refuse access to the remaining information in the records on the basis of 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.

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Sandra Murdiff

Investigator