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

Case Number: 150260

Whether the HSE was justified in refusing access to certain records relating to the applicant's daughter

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

While the Children and Family Services functions of the HSE were transferred to TUSLA on 1 January 2014, the HSE provides administrative support to TUSLA in relation to the FOI Act. For the purposes of this review, references to TUSLA should be read as the HSE where appropriate.

On 26 June 2015, the HSE received an FOI request from the applicant seeking all medical records relating to his daughter, including those held in various medical practices and in a particular Hospital. The HSE appears to have split responsibility for dealing with the request between three officials, two in the HSE and one in TUSLA. A decision did not issue within the statutory four week timeframe, effectively refusing the request.

The sequence of events from this point is rather confusing. On 5 August 2015, the applicant sought an internal review of the effective refusal of his request. Responsibility for the internal review was again split between three officials, two in the HSE and one in TUSLA. It seems that the officials were unclear as to whether they were obliged to carry out an internal review, given that three separate letters dated 4, 11, and 14 August 2015 had issued to the applicant in belated response to his original request. Those letters had refused access to the relevant records under sections 35 and section 37 of the FOI Act (which concern information given in confidence and personal information).

On 18 August 2015, the applicant applied to this Office, on the basis of his dissatisfaction with the internal review process. A review by this Office under section 22 of the FOI Act, however, can only consider whether or not a public body has justified its refusal of records. The applicant was notified that the review would proceed on that basis.

I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above; to correspondence between this Office and the HSE, the applicant, and the child's mother, and to copies of the records at issue, which were provided to this Office for the purposes of this review. I have had regard also to the provisions of the FOI Act.

Scope of the Review

This review is confined to whether or not the HSE has justified its refusal to grant access to all of the records requested by the applicant. It does not extend to considering whether certain aspects of the records should be amended, as the applicant has argued in his submissions. Any amendment of the records would be a matter for a fresh application, which must be made under section 9 of the FOI Act.

Neither can the review take account of how the applicant's request or internal review application were dealt with, or make findings on such issues. That said, FOI bodies should be aware of the provisions of section 14 of the FOI Act, which deals with when, and how, time frames for responding to initial FOI requests can be extended. Unless these provisions are complied with, requests are deemed to have been refused (section 19 refers) if not decided upon within the statutory timeframe (section 13 refers). Requesters are entitled to seek internal reviews of such deemed refusals. There is no scope for extending the timeframe for dealing with applications for internal reviews. Such applications are deemed to have been refused (again, section 19 refers) if not decided upon within the statutory timeframe, which is also subject to review by this Office.

Preliminary Matters

At the outset, it is relevant to note a number of preliminary matters.

Section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons for the request.

Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). While the HSE has released details from certain records while redacting other parts, I take the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. It follows that the reasons I can give for my decision in this case are limited.

Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

The Records At Issue
Records Created after the FOI Request
Some of the records considered relevant to the request were created, or received by, the FOI body after the date of receipt of the request. Likewise, some of the entries in those records that were, as required by the FOI Act, created to hold relevant database information, relate to events that took place after 26 June 2015. This review cannot consider any material that post-dates receipt of the request. Given the decision that follows, however, I see no need to list the records/entries concerned.

GP Records
The HSE considered three sets of GP records. All of these were partially released, except for one record in one set, to which access was refused in full. The HSE's letter of 14 August 2015 relied on section 37 in withholding the various material.

Hospital Records
Some of the Hospital records were released in full, and the rest were released in part. The HSE's letter of 4 August 2015 relied on sections 35 and section 37 of the FOI Act in withholding the information concerned.

Family Centre/Social Work Records
TUSLA considered the Family Centre and Social Work records including a paediatric report that the applicant wishes, in particular, to obtain. According to its letter of 11 August 2015, TUSLA released some records in part, withheld some in full and released some in full. It relied on sections 35 and 37 in respect of the withheld material.

Findings

Section 37 - General
Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing the personal information of a party other than the person seeking the record. Section 37(7), also subject to other provisions of section 37, provides for the mandatory refusal of a record that contains the personal information of the person making the FOI request and that of another party or parties (joint personal information).

Generally speaking, section 37(8) of the FOI Act (and associated Regulations) enables a parent to access records of his or her minor child, or records that concern the parent and child. This provision reflects the Constitutional presumption that a parent acts in the best interests of his or her child. However, this provision does not give a parent any right of access to the personal information of other parties (to which I will refer in this decision as "third party personal information", or "third parties", as appropriate). This is also the case where such third party personal information is inextricably linked to the personal information of an applicant, and/or his or her child.

Section 37(1) and (7)
Having examined the details at issue on the Family Centre and Social Work files, I can say that the material concerned, including the fully withheld paediatric report, relates to child protection matters concerning the applicant's daughter. However, the material also concerns other persons, including the applicant. The details withheld from the remaining files concern the applicant's daughter's general health care, as well as the child protection matters. They also relate to other parties, including the applicant. The details on all files are very sensitive and confidential in nature.

I am satisfied that the vast majority of the details at issue comprise (i) third party personal information, or (ii) third party personal information that is inextricably linked to the personal information of the applicant and/or his daughter.

Having considered section 18 of the FOI Act, I do not consider it appropriate to direct release of any details in the records described at (ii) that could be said to relate to the applicant and/or his daughter alone. Furthermore, release of these records would disclose personal information not only about the applicant and/or his daughter, but also about third parties. Accordingly, they do not fall for consideration under section 37(8) and its associated Regulations.

I consider, and find, these records to be exempt under sections 37(1) and 37(7) of the FOI Act.

Section 37(2)
There are some circumstances, provided for at section 37(2), in which the exemptions at sections 37(1) and 37(7) do not apply. The applicant has not argued that this provision is relevant.

Having examined the withheld details, I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) that the details concerned do not relate solely to the applicant; (b) that the third parties have not consented to the release of their personal information; (c) that the information is not of a kind that is available to the general public; (d) that 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) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5)
Section 37(5) provides that a record, which is otherwise exempt under sections 37(1) and/or 37(7), 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 parties to whom it relates, as envisaged by section 37(5)(b) of the FOI Act, nor has the applicant made any argument in this respect.

Section 37(5)(a) - The Public Interest
The July 2011 Supreme Court judgment, in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner,[2011] 1 I.R. 729, [2011] IESC 26), ("The Rotunda case") 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. Thus, in considering section 37(5)(a), I must distinguish private interests from "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. "

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, 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). Accordingly, when considering section 37(5)(a), privacy rights will 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 maintains that the public interest warrants release of all the records at issue. [THE APPLICANT MADE VARIOUS ASSERTIONS IN THIS REGARD, THE MAJORITY OF WHICH DISCLOSE PERSONAL INFORMATION. THOSE ASSERTIONS HAVE BEEN DELETED]. He suggests that the Courts "lacked full access to the facts" when deciding on his access/guardianship rights.

This Office has no remit to consider, or make any findings on, any of the assertions made by the applicant. In particular, it would not be appropriate for me to in any way question or second-guess the Family Court's judgment(s). Neither would it be appropriate to direct the release of sensitive third party personal information, effectively to the world at large, on the sole basis of an assertion that a Court lacked all facts when making a particular judgment.

[THE FOLLOWING PARAGRAPH HAS BEEN DELETED. IT REFERRED TO THOSE ASSERTIONS MADE BY THE APPLICANT THAT CANNOT BE PUBLISHED]

Neither have I remit to consider, or make findings on, whether any of the HSE's actions were appropriate, or otherwise complied with the requirements of Children First, or with the requirements of fair procedure generally. It is not appropriate for me to direct release of information, in the public interest under section 37(5)(a) of the FOI Act, simply because of assertions to this effect. As the Commissioner said in his composite decision in cases 090261/090262/090263, "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."

It seems to me that the remaining arguments made by the applicant, including those regarding family relations and awareness of his child's health, are based on his own private interests. I cannot have regard to such private interests in making my decision in this review. Furthermore, in so far as any of the details at issue would provide the applicant with additional information about his daughter's medical history, those records also contain third party personal information.

In this case, there is a strong public interest in establishing whether the HSE carried out its functions, including those in dealing with allegations of child abuse, in a manner that was consistent with the principles of natural and constitutional justice as well as the right to privacy. While this public interest has been served to some extent by the material released to date, I accept that release of the remaining details at issue would enable further insight in this regard. On the other hand, I accept that release - effectively to the world at large - of the very sensitive material that was created in a medical context, would result in a significant breach of the Constitutional rights to privacy of the third parties whose information is contained in the records.

Having carefully weighed the competing public interest factors in favour of and against release, in the circumstances of this case I find that, on balance, the public interest that the right to privacy of the third parties to whom the records relate should be upheld outweighs the public interest that access to those records should be granted.

Section 37(8)
Having considered the records as well as the provisions of section 18, I note that there is a very small amount of information that can be said to relate to the applicant's daughter only, or to the applicant and his daughter only, which may be potentially releasable under section 37(8) of the FOI Act.

Section 37(8) provides for the making of regulations under which the parent or guardian of a person belonging to a specified class of persons may have a right of access to that person's personal information. The regulations provide for a right of access by parents or guardians to records containing personal information relating to minors in certain circumstances. The regulations provide that a request for records relating to personal information about a minor shall be granted where the requester is the minor's parent or guardian and where, having regard to all the circumstances and to any relevant guidelines published by the Minister, access to the records by the parent/guardian would be in the minor's best interests.

I have had regard to the relevant Guidance Notes published by the Minister. Due to the child's young age, it would not be appropriate to seek her views. However, my Office consulted the child's mother (who is her guardian) in the course of this review. She objects to the release of any information.

The issue to be decided in relation to the remaining parts of the withheld information, therefore, is whether the best interests of the applicant's child will be served by the release to the applicant of those parts of the records disclosing his child's personal information.

The Supreme Court held in the case of McK v. The Information Commissioner[2006] IESC 2, available at www.oic.ie, that a parent is entitled to a presumption that access to his or her child's medical information is in the best interests of the child. This presumption, which is Constitutional, may be rebutted.

The McK judgment was concerned with a parents as part of the family that is recognised by the Constitution i.e. a the family based on marriage. In the present case, the parents have not married. While it is debatable if, in such circumstances, the McK judgment has any relevance at all to the case at hand, I do not intend to consider this issue. This is because, in any event, I am not satisfied that release of the details at issue would be in the child's best interests.

The HSE maintains that most of these details should be withheld. One of the arguments put forward in this regard by the HSE is that the child is in the care of her mother, and that the Family Court did not grant the applicant guardianship of his daughter, and allowed him only limited access to her, under supervision. The HSE is, essentially, arguing that the Court's judgment(s) support the proposition that it would not be in the child's best interests for the relevant details to be released to the applicant.

The child's mother, who is her legal guardian, has refused to consent to the release of the records. This, presumably, may be taken to mean that she does not believe such release would serve the best interests of the child.

As already outlined, most of the arguments made by the applicant focus on why his own interests would be served by release of the details at issue. While he clearly considers the Court findings on his guardianship/access rights to be flawed, his assertions do not provide any basis for me to disregard those findings. In all the circumstances, it is prudent for me to take a cautious approach to the matter of whether he is entitled to access the withheld information. Furthermore, as explained above, while no party has a right of veto over whether information should be released under FOI, I cannot disregard the child's mother's (and guardian's) views which must be presumed to reflect what she considers to be in her child's best interests. In the overall circumstances, and notwithstanding that the HSE is willing to release a small amount of the very limited details under consideration here, I find that it is not appropriate to direct that those details be released under section 37(8) of the FOI Act.

The Paediatric Report
The applicant's submission also takes issue with the fact that the Hospital told him that it did not hold this report, even though the assessment took place on its premises. It told him that the report was held by TUSLA. I do not consider it my role to seek explanations for the applicant in this regard. In so far as he might be arguing that further records relevant to the assessment should be held by the Hospital and should have been considered relevant to his request, it seems to me that such records would, as a matter of course, refer to his child, and, in all probability, to other parties, as did the report itself. Given my findings on the application of sections 37(1), (7) and (8) in relation to the records that have been considered to date, I see little point in remitting this aspect of the review (that is, the matter of whether further records relevant to the paediatric report exist) to the HSE for further consideration.

Section 35
Given my findings above 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 FOI Act, I hereby affirm the HSE's refusal of access to the records at issue.

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