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Mr X and The Health Service Executive (FOI Act 2014)

Case Number: 160416

Whether the HSE was justified in its decision to refuse access to records, relating to the applicant under sections 15(1)(a) and 37(1) of the FOI Act

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 25 May 2016, the applicant made a request under the FOI Act for access to his social work and medical records. The HSE refused access to the records on the basis of section 15(1)(a) of the FOI Act. Following a request for an internal review, the HSE acknowledged that it had located the applicant's file. On 8 September 2016, the HSE granted access to some of the records and withheld access in full or in part to other records on the basis of section 37(1) of the Act. On 3 October 2016, this Office received an application from the applicant for a review of the decision of the HSE.

In his application, the applicant raised the matter of section 15(1)(a). In referring to section 15(1)(a) the applicant appears to dispute the search methods applied by the HSE in its original decision. He also noted that several numbered pages, identified by the HSE as released to him, contained no information. While it is not clear if the applicant intended to seek a review of the decision of the HSE on the matter of section 15(1)(a) and adequacy of search, I have decided, for the sake of completeness, to consider that exemption in this decision.

In conducting my review, I have had regard to the submissions of the HSE and the applicant, and to correspondence between the applicant, the HSE and this Office. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

Scope of Review

This review is solely concerned with whether the HSE was justified in deciding to refuse access to additional records on the basis of section 15(1)(a) and to withhold information in other records in full, or in part, on the basis of section 37(1) of the FOI Act. My review will not consider allegations made about the HSE's treatment of the applicant and his family, since the Commissioner's remit is confined to deciding on whether records fall to be released under FOI.

Preliminary Matters

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

In addition, section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions.

I note that section 18(1) of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. However, this should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. The Commissioner takes the view that the provisions of section 18 do not 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.

When a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put. This approach has been upheld by the Courts including in the recent decision of McDermott J. in F.P. and the Information Commissioner [2014 No. 114 MCA].

Findings

Section 15(1)(a) - Adequacy of search
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. This Office's role in such cases is to review the decision of the public body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his or her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for the records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner (2002 No. 18 M.C.A.), available on www.oic.ie.

In both his letter of application and in his submission, the applicant raised the matter of whether additional records might exist in that certain numbered records listed in the schedule as released contained no information. The HSE explained to this Office that when it was preparing the applicant's records for release, single pages in his file were inadvertently copied on both sides. It stated that each side was then allocated a record number and that consequently, some numbered pages were blank. The HSE stated that this was simply a photocopying error and offered its apologies through this Office to the applicant for the confusion. I agree that the copying caused confusion and that the numbering of blank records should not happen.

The applicant appears to take issue with the processes applied by the HSE in its search for his records. He complains that the records could not be found at the initial decision stage and that the HSE gave no explanation for "the sudden appearance" of the records at internal review stage. In its submission, the HSE explained to this Office how it conducted a search of the applicant's records during its internal review. It mentioned that a retired employee provided information which assisted in the further searches and location of the records. It seems to me that the internal review process resulted in better and more successful search and retrieval of the records.

As such, I am satisfied that the HSE conducted a search as set out in the 'Adequacy of Search' Guidelines in this Office's Procedures Manual (available at www.oic.ie). The HSE stated that no further records exist relating to the applicant.

The position of the HSE is that it has taken all reasonable steps to look for records of relevance to the applicant's request. I do not believe that the FOI Act requires me to direct the HSE to carry out indefinite new searches. In view of the information provided by the HSE relating to the records identified in the schedule, I consider that it has taken all reasonable steps to ascertain the whereabouts of relevant records. I find, therefore, that section 15(1)(a) of the FOI Act applies.

Section 37 - Personal information

Section 37(1)
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.

The HSE withheld in full, or in part, the following records (including blank numbered pages), 53-122 and 165-184, inclusive, on the basis of section 37(1) of the Act. It stated that refusing access to the records under section 37 of the Act would protect the personal information of persons other than the applicant. It will be clear to the applicant from the records released to him that although he sought his own records as held by a particular doctor within the HSE, the records held included copies of records relating to his children and wider family.

Most of the withheld information in the records discloses the personal information of parties other than the applicant which is of a private and sensitive nature.

I am satisfied, from my examination of the records, that the withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant and his child that is inextricably linked to the personal information of other individuals, i.e. joint personal information. Accordingly, I find that section 37(1) and/or section 37(7) of the FOI Act applies to those records.

Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. That is to say, (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 that 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 a serious and imminent danger to the life or health of an individual.

In relation to section 37(2)(b), the applicant raised the issue of consent of third parties to release the withheld information in the records. However, the applicant did not offer any evidence that he had obtained the consent of the third parties concerned to the release to him of their personal information. In examining the records, I have decided that it is not necessary, or appropriate for this Office to seek the consent of any of the third parties concerned. Neither do I consider that the FOI Act envisages that the public body would have to contact individuals to seek their consent to release of personal information. Consultation with third parties in the context of personal information arises under section 38 of the Act only where a public body is considering release of information in the public interest.

Section 37(5) - the Public Interest
Section 37(5) of the FOI Act 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.
I am satisfied that the release of the information at issue would not be to the benefit of the third parties concerned and that section 37(5)(b) does not apply.

In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

In considering the public interest test at 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 [2011] IESC 26 ("the Rotunda case") (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 information at issue in this case is sensitive and, as mentioned earlier, I am mindful of my obligations under section 25(3) of the FOI Act. There is a public interest in openness and transparency in the manner in which the HSE performs its functions. I find that the released records and related information have served the public interest in openness and accountability to some degree although they may not provide the level of detail that the applicant seeks.

Having considered the matter carefully, I do not consider that the public interest in the release of withheld information in this instance outweighs, on balance, the significant public interest in protecting the privacy rights of the individuals to whom the information relates. My approach in this regard is supported by McDermott J., in his December 2016 judgment in the case of F.P. and the Information Commissioner referred to earlier. I find, therefore, that section 37(5)(a) does not apply.

Section 37(8) - Access to the personal information of minors
Section 37(8)(a) provides that, notwithstanding subsection (1), the Minister for Finance may provide by regulations for the grant of access where
"the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual".
The FOI Act 2014 (Section 37(8)) Regulations, 2016 (S.I. No. 218 of 2016) make provision for access to personal information of minors and deceased persons in certain circumstances. In the particular circumstances of this case, I have considered whether there is any remaining information in the records, not otherwise found to be exempt from release, to which the provisions of section 37(8) would apply, i.e. is there any personal information of the applicant's minor child which could possibly be considered for release under this provision.
Taking into consideration the position as regards sections 18 and 37(5) as set out above, I am satisfied that any remaining information in the records about the applicant's child, or joint personal information about the applicant and his child, is so intertwined with the personal information of third parties that it would be impractical to isolate it for release in a manner which would not make the information misleading. Thus, I will not consider further the application of section 37(8). Neither is it necessary to consider the Supreme Court judgment in McK v. The Information Commissioner[2006] IESC 2, concerning parents' right of access to their child's records. Unlike the situation in case 160175 in which the applicant was also the requester, there are no withheld records containing solely the personal information of the applicant and his minor child.

Accordingly, I find that the HSE was justified in its decision to refuse access to the withheld records and parts of records, under section 37(1) and/or section 37(7) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse access to records under section 15(1)(a) and to withheld records and parts of records, under section 37(1) and/or section 37(7) of the FOI Act.

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