Decision
Ms H and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-143126-G9P7K4
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Cite as: [2024] IEIC 143126
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Whether the HSE was justified in redacting the name of a staff member from a record, under section 37(1) of the FOI Act
4 October 2024
In a request dated 9 August 2023, the applicant sought, among other things, copies of the responses issued by seven Hospital Group CEOs to correspondence from the HSE's National Director of Acute Operations issued on 1 March 2022 following on from a specified Internal Audit Report.
As the HSE failed to issue its decision within the statutory timeframe, the applicant sought an internal review of the deemed refusal of her request on 8 September 2023. On 20 September, the HSE released records 3, 4 and 5 in full, as listed on an accompanying schedule, and granted partial access to records 1, 2 and 6, with certain information redacted under section 37(1) of the FOI Act, which is concerned with the protection of third-party personal information.
On 16 October 2023, the applicant applied to this Office for a review of the HSE's decision. She said the documentation issued includes responses received from only six CEOs, omitting any mention of a response from the RCSI Hospital Group. She said the HSE failed to clarify her further enquiry as to whether that response exists. She also said she disagreed with the decision to redact the name of an individual from record 6 under section 37(1).
Following receipt of the application for review, this Office sought copies of relevant subject records for the purpose of conducting our review. In its response of 27 October 2023, the HSE said the relevant RCSI response had initially been missed as it was on a generic email address but was found following a further search. It apologised for the oversight and said it released the record in question in full. However, during the course of the review, the applicant informed this Office that she had not received the record. The HSE eventually released the record on 1 August 2024.
I have now completed my review in accordance with section 22(2) of the FOI Act. I have decided to conclude the review by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, and to the correspondence between this Office and both the HSE and the applicant on the matter.
The scope of this review is concerned solely with whether the HSE was justified in redacting the name of an individual from record 6 under section 37(1) of the FOI Act.
In the course of the review, the applicant made submissions expressing concerns about the manner in which her request has been processed by the HSE. While it is unfortunate that the HSE did not identify all of the records sought in its initial processing of the request, and while the applicant's apparent frustration with what she considers to be the piecemeal release of information in this matter are noted, it should be borne in mind that this review has been undertaken in accordance with the provisions of section 22(2) of the Act and is concerned solely with a review of the decision taken by the HSE on her FOI request.
Record 6 comprises an email thread between a Hospital Group CEO and the HSE's Acute Operations Division. The HSE redacted the name of a staff member identified in the email thread as providing locum cover for leave.
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 a third-party other than the requester. '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 also details 14 specific categories of information that is personal information without prejudice to the generality of the forgoing 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)(a) (a personnel record of a member of staff of an FOI body).
Certain information is excluded from the definition of personal information. 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 exclusion at Paragraph (I) does not provide for the exclusion of all information relating to such staff or office holders. This Office considers that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member or office/position holder in an FOI body in the context of the particular position held or any records created by the staff member or office/position holder while carrying out his or her official functions. The exclusion does not deprive staff members or office/position holders in FOI bodies of the right to privacy generally.
The HSE said the individual's name was redacted on the basis of it being personal information relating to the roster of an individual and information that would ordinarily not be released to the public at large. In its internal review decision, the HSE also said that the applicant's FOI request was a follow-up to previous requests which all sought information on an individual identified as 'consultant A'. It argued that the release of the name redacted from record 6 could inadvertently lead to an incorrect assumption that the individual in question is involved in some way in issues that were discussed in certain reviews and related documents, i.e. an assumption that the individual in question and 'consultant A' are connected.
In further correspondence with this Office, the HSE explained that an Internal Audit report previously carried out into certain matters mentioned carrying out a review of 'consultant A'. It said that on further reflection, it was agreed that a review of the entire service was what was required as the problems within were not related to any individual. It said the applicant has made a number of previous FOI requests seeking information relating to a review into 'consultant A'. It said it has previously been explained to the requester that there was no 'review' ever undertaken into 'consultant A' and that instead, a review was taken of the entire service. It explained that as record 6 was the only one that contained any name relating to a particular specialist grade, it was decided to redact the name on the basis that it was relating to personal and individual roster information which would not ordinarily be considered public information and could inadvertently lead to the identity of 'consultant A' due to the very small numbers of the specialist grades employed. It argued that the release of a name at this point could lead to a serious risk to the reputation and career of either the named consultant, or any of the very small number of colleagues.
During the course of the review, the Investigator offered the HSE several opportunities to provide further submissions as to why it considers that the exclusion to the definition of personal information outlined above does not apply and to provide further clarification concerning its argument that the release of the name could cause reputational damage to either the named consultant or to any of the named consultant's colleagues. To date, no such further submissions have been received. Accordingly, I must make my finding based on the information and evidence that is before me. The disclosure of the name in question would disclose the fact that the individual in question was providing locum cover for leave. While this may well comprise a type of information that is not generally made public, it seems to me that it discloses nothing of an inherently private or confidential nature about the individual. In my view, given the context in which the name is recorded in the record in question, the information comprises information relating to the position itself and as such, is excluded from the definition of personal information, pursuant to Paragraph (I).
In relation to the second matter concerning potential connections with 'consultant A', it seems to me that the essence of the HSE's argument is that the applicant may draw incorrect inferences from the release of the name of the individual, resulting in potential reputational damage to the individual or to the individual's colleagues. It has not explained how such reputational damage might occur, in circumstances where it has already clearly indicated to the applicant in its internal review decision that any assumptions the applicant might make as to the identity of 'consultant A' and consultant A's involvement in certain matters are incorrect. Neither is it apparent to me, having considered the evidence before me, as to how such harm might occur. It is important to note that under section 22(12)(b) of the FOI Act, a decision to refuse a request is presumed not to have been justified unless the FOI body satisfies this Office that the refusal was, indeed, justified. Moreover, this Office has, on many occasions, explained that the potential for a requester to misunderstand information is, generally speaking, not a good cause for refusing access to the records of public bodies as such an argument seems to be based on an assumption that public bodies are incapable of explaining their records to the public. Accordingly, I am not satisfied that the redacted information is exempt from release on the basis of section 37(1).
In conclusion, I find that the HSE was not justified in redacting the name of an individual from record 6 and I direct its release.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE's decision. I find it was not justified in its decision to redact, under section 37(1) of the FOI Act, the name of a staff member from record 6 and I direct its release.
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.
Stephen Rafferty
Senior Investigator