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Mr N and Health Service Executive (FOI Act 2014)

Case Number: 160440

Whether the HSE was justified in its decision to refuse the applicant's request for access to a letter concerning his daughter's medical treatment, which was written by the child's mother

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 4 July 2016, the applicant sought access to a copy of a letter concerning his daughter's medical treatment within the Child and Adolescent Mental Health Services (CAMHS), which was written by the child's mother. The HSE failed to make a decision on the request within the statutory time-limit and the applicant applied for an internal review on 22 August 2016, in order to obtain a decision on his request. The HSE issued an internal review decision on 13 September 2016, refusing the applicant's request. On 4 October 2016, the applicant sought a review by this Office of the HSE's decision.

I note that on 13 January 2017, Ms Lydia Buckley of this Office wrote to the applicant and outlined her view that the HSE was justified in refusing access to the letter under section 37(7) of the FOI Act. Ms Buckley also offered the applicant an opportunity to make a submission.

I have decided to conclude this review by way of a formal, binding decision. In concluding this review, 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 the applicant and the HSE on the matter. I have also had regard to the content of the record at issue.

Preliminary Matters

I want to highlight two shortcomings in terms of the HSE's handling of the applicant's request. Firstly, the HSE did not issue a decision on the applicant's request within the statutory time fame. Secondly, the internal review decision did not provide an adequate statement of reasons for the HSE's decision to refuse the applicant's request, as required under the FOI Act.

On 30 November 2016, this Office exercised its power under section 23 of the FOI Act and directed the HSE to provide a fuller statement of reasons to the applicant and this Office. After a delay, the HSE provided the statements of reasons by letter dated 6 January 2017. In that letter, the HSE stated that it was relying upon sections 37 and 35 of the FOI Act in refusing access to letter as it considered it to contain third party personal information, that is information belonging to a party other than the applicant and his daughter, and it also considered that the information in the letter was given in confidence.

I also should to explain the approach of this Office to the granting of access to parts of records. 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, I take 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, I am not in favour of the cutting or "dissecting" of records to such an extent.

Finally, I want to point out that while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. This constraint means that the extent to which I can describe the contents of the record is limited. It also means that the extent to which I can give reasons for my decision is necessarily limited.

Scope of Review

This review is solely concerned with the issue of whether the HSE was justified in refusing the applicant access to a letter relating to his daughter's medical treatment by the CAMHS, which was written by the child's mother and provided by her to the CAMHS.

Analysis and Findings

The HSE argue that the record is exempt from release under sections 35 and 37 of the FOI Act. In my view, section 37 is most applicable and I will address that exemption first.

Section 37
Section 37(1) of the FOI Act provides that an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Furthermore, section 37(7) provides that 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 referred to as joint personal information.

For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. Section 2 of the Act further details fourteen specific categories of information which constitute personal information, without prejudice to the generality of the foregoing definition.

While the description that I can give of the record at issue is limited, I can say that the letter sought by the applicant is a letter concerning his daughter's medical treatment. This letter was written by the child's mother and sent to the CAMHS. The letter contains inherently private information pertaining to applicant, the child, and the mother who wrote the letter. Having carefully examined the letter, I am satisfied that the personal information of the applicant and his daughter is inextricably linked to the personal information of the child's mother. I find, therefore, that section 37(1) of the Act applies in this case as the release of the letter would involve the disclosure of personal information relating to an individual other than the applicant and his daughter.

The effect of section 37(1) applying is that a record disclosing personal information relating to a third party or third parties cannot be released to another person, unless one of the other relevant provisions of section 37 applies, which I will deal with below.

Section 37(2) and 37(5)
There are certain circumstances, provided for under section 37(2) and 37(5), in which the exemption set out in section 37(1), does not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. Section 37(5) provides that a record, which is otherwise exempt under section 37(1), may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I do not consider that the release of the information at issue would benefit the third party to whom the information relates, as envisaged by section 37(5)(b) of the FOI Act.

Section 37(5)(a) - The Public Interest
On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting access to the information of which I have found section 37(1) to apply outweighs, on balance, the public interest in protecting the privacy rights of the third party to whom the information relates.

In considering the public interest test in section 37(5)(a), I have had regard to the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner(the Rotunda judgment), available at www.oic.ie. In the judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, "a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law" must be distinguished from a private interest for the purpose of section 37(5)(a).

The applicant, in a submission to this Office, stated that he believes he has a right to access the letter in his capacity as a concerned parent as the letter pertains to his daughter and her medical care. In line with the Rotundajudgment, in the context of determining whether to grant a request in the public interest under section 37(5)(a), the reasons given for a request may be considered only insofar as they reflect a true public interest, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public. I am of the view that the applicant's interest in obtaining information pertaining to his daughter's medical treatment reflects a wider public interest in allowing parents to access information relating to the medical treatment of their children. I also recognise that the Supreme Court in its judgment in McK v. The Information Commissioner[2006] 1 I.R. 260, held that a parent is entitled to a rebuttable presumption that access to his or her child's medical information is in the best interests of the child.

A second relevant public interest is recognised by the FOI Act. The Long Title of the FOI Act recognises that there is a general public interest in ensuring openness, transparency, and accountability in how public bodies perform their functions, provided that it is consistent with the right to privacy.

On the other hand, the public interest in respecting the right to privacy is a very strong public interest which is recognised in the language of section 37 of the FOI Act. The public interest in protecting privacy rights is also reflected in the Long Title to the Act. Furthermore, the right to privacy has been recognised as an unenumerated right under the Constitution. I am also mindful that the strong protection afforded to privacy rights under FOI is consistent with Article 8 of the European Convention on Human Rights. Also, unlike other public interest tests provided for in the FOI Act, there is 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 question I must consider is whether public interest in the release of the joint personal information contained in the letter outweighs, on balance, the significant public interest in protecting the privacy rights of the third party to whom the information relates, i.e. the mother of the child. In my view, it does not.

While there is a public interest in allowing concerned parents to access the medical information of their children, this public interest has been met to an extent in this case as the HSE have informed the applicant of the contents of the letter insofar as it relates to medical treatment of his daughter. It should be noted that the record in question is not a medical record created by a medical practitioner in the course of the child's care, but a letter written by the mother of the child about her child's medical treatment. It contains information not only relating to the child's medical treatment but information of a private and personal nature belonging to the mother. In these circumstances, it is important to recall that release under FOI is regarded, in effect, as release to the world at large. Although there is a public interest in optimising openness and accountability in the manner in which the HSE carries out its functions, I am of the view that this public interest has also been met to a certain extent by the HSE informing the applicant of the contents of the letter.

Accordingly, I do not consider that the public interest in the release of the joint personal information in this instance outweighs, on balance, the significant public interest in protecting the privacy rights of the third party to whom the information relates. I find, therefore, that section 37(5)(a) does not apply and the HSE was justified in its decision to refuse access to the letter sought by the applicant on the ground of section 37.

For the sake of completeness, I want to explain that the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016, are not applicable to this review. The Regulations, in accordance with section 37(8) of the FOI Act, provide for a right of access by parents or guardians to personal information of individuals who, at the time of the request, have not attained full age, and where the release of the information would, in the opinion of the public body and having regard to all the circumstances, be in the child's best interests. If the letter in this case only contained personal information relating to the applicant and his daughter, the applicant may have had a right of access under the Regulations, in his capacity as a parent of the child, if the release of the information was determined to in the best interests of his daughter. However, the Regulations do not apply where the information is joint personal information, i.e. personal information relating to a child and a third party. As the information at issue in this review is joint personal information, the Regulations do not apply and applicant does not have a right of access under the Regulations.

Given my findings regarding section 37 of the FOI Act, there is no need for me to consider the section 35 exemption in this review.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the HSE in this case.

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.



Elizabeth Dolan
Senior Investigator