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

Case Number:150408

Whether the HSE was justified in refusing access to certain records relating to the applicant concerning an organisation with which he was involved

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 9 February 2015, the applicant made an FOI request to the HSE for access to records of correspondence relating to him, as between a named official of the HSE and several named third parties, from January 2012 onwards. The HSE's ultimate refusal of the request, on the basis that the requested records did not exist or could be found (section 15(1)(a) refers) was the subject of this Office's review in Case Number 150137. During the review, records were found that had to be examined for relevance to the request. On 17 August 2015, the Commissioner's authorised officer found that the HSE had not justified its reliance on section 15(1)(a). He annulled the HSE's decision and directed it to undertake a fresh decision making process in relation to the applicant's request of 9 February 2015.

The HSE made a fresh decision on that request on 23 October 2015. It identified 261 electronic records, some of which it released in full and the rest it released in part. In refusing to release the material concerned, it relied on the provisions of the FOI Act that concern information given in confidence and personal information (sections 35 and 37, respectively). The applicant sought an internal review of this decision, which the HSE received on 30 October 2015. The HSE's internal review decision of 20 November 2015 released some additional material from the remainder of the 261 records. It also said that additional records had been found, the majority of which it fully or partially released. A small number were fully withheld. The HSE relied on sections 35 and 37 in refusing to fully release all relevant records.

Also on 20 November 2015, the applicant applied to this Office for a review on the basis that he had not at that point got a decision on his internal review application. He was subsequently notified that this review would be concerned only with whether the HSE had justified its refusal to release all of the records it had identified as relevant to the request.

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 and the applicant; 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 the withheld parts of the 367 records it identified as relevant to the applicant's request.

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 that the applicant might have 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

As I understand it, the HSE official, who is now retired, sent and received the 367 records at issue in his capacity as a official of an organisation that is funded by the Department of Social Protection (DSP). According to the HSE, it "has no involvement with" the organisation, which it says is a registered charity that is managed by an independent voluntary Board of Directors. The applicant was also involved with the organisation in his capacity as a DSP employee. The records, which I understand the HSE sourced from its own electronic systems, relate to various personnel and related matters in the organisation.

Details have been withheld from the following records:

Records 5; 18; 25; 29; 30; 31; 32; 33; 34; 35; 36; 68; 72; 77; 82; 90; 92; 112; 115; 116; 117; 118; 119; 120; 121; 123; 124; 135; 137; 141; 142; 153; 154; 174; 175; 177; 178; 181; 182; 192; 193; 198; 199; 218; 220; 229; 231; 237; 243; 244; 250; 264-266 (withheld in full); 298; 308; 322; 332-340 (withheld in full); 341-354 (withheld in full); and 355-363 (withheld in full).

Findings

Sections 37(1) and (7)
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).

"Personal information" is defined at 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 members of the family, or friends, of the individual, or
(b) is held by a public body on the understanding that it would be treated by it as confidential"

Section 2 goes on to list 14 examples of personal information, including "information relating to the employment or employment history of the individual". It also provides that certain information about public servants, including persons in offices or positions "remunerated from public funds in an FOI body", is excluded from the definition, as are "the views and opinions of the individual in relation to an FOI body, the staff of an FOI body, or the business or performance of an FOI body".

I am constrained in the description I can give of the details at issue. However, I am satisfied that the material concerned comprises sensitive personal information about third parties, including information relating to their employment or employment history, or the joint personal information of the applicant and those third parties. As far as the joint personal information is concerned, given the inextricable link between the personal information of the applicant and that of the third parties, I do not consider it possible or practicable to extract any personal information about the applicant alone for the purposes of section 18 of the FOI Act.

The applicant says that the HSE "is in possession of, processing and claiming privilege over, information that is in fact not its property or right to have." He implies that section 37 cannot be applied to information that is held by a public body in such circumstances. It is not part of my role to determine whether the former HSE official used HSE resources in relation to any work he did external to the HSE or whether the HSE has any "right" to hold the records at issue on its systems. The situation is that the HSE holds the records sought and it would not be appropriate for this Office to simply direct the release of information concerning the individuals other than the applicant without any consideration of section 37.

The applicant also contends that, because the organisation was publicly funded, it is subject to FOI and that any communications between persons in the organisation and the HSE cannot be regarded as personal information. I do not accept this argument. The information about public servants, or persons that hold or held "any other office, or any other position remunerated from funds in an FOI body", and which cannot be classified as personal, is limited. Essentially, the exceptions at paragraph (I) of the definition provide that where a person is a director or member of staff of an FOI body, or holds or held any other office or position remunerated from funds in an FOI body, the following do not constitute personal information: the name of the individual in the context of their position or office; information regarding the office or functions of the individual concerned; the terms upon which the individual holds their office or position or performs a function; and records created by that individual in the course, of and for the purpose of, the performance of the functions assigned. I am satisfied that none of the information at issue falls into any of these categories of information. In such circumstances, there is no need for me to determine if the organisation is an FOI body.

The applicant also argues that the details at issue must be released because section 2 provides that the "views and opinions of an individual in relation to ... the staff of an FOI body ..." cannot be described as personal information. I do not accept that this exclusion is as far-reaching as the applicant contends. Regard must be had to the context of records created in the workplace. In my view, the exclusions do not deprive public servants of the right to privacy generally.

I find the details at issue 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.

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.

In making this finding, I do not accept the applicant's argument that the information at issue has been put in the public domain because "staff of the HSE have viewed and processed the material in the same manner as any member of the public would, who is unconnected with any party to the information.". Records are not placed in the public domain simply because of being held by an FOI body, or because their contents have for some reason been considered by the body's staff. If this were the case, there would be no need for the FOI Act.

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 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. Both 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 HSE has acted inappropriately in its dealings with him. I have no remit to consider, or make findings on, such matters. Neither would it be appropriate to direct the release of sensitive third party personal information in the public interest, effectively to the world at large, on the basis of assertions. 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."

There is a public interest in establishing whether the relevant FOI body (or, if appropriate, bodies) carried out its functions in a manner that was consistent with the principles of natural and constitutional justice as well as the right to privacy. In this case, this public interest has been served to some extent by the material released to date. The HSE has also said that the records at issue related to the official in his capacity as an official of an organisation, not as an official as the HSE. One could take this as an argument that release of the details at issue would not provide any additional insight whatsoever into the workings of the HSE. Even if I accept that release of the remaining details at issue would enable further insight in how the HSE carried out its functions, I do not consider that this would be to any significant degree. On the other hand, however, I accept that release of the sensitive third party personal information at issue, effectively to the world at large, would result in a significant breach of the Constitutional rights to privacy of the third parties concerned.

Having carefully weighed the competing public interest factors in favour of and against release, 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.

In the circumstances, there is no need for me to consider the HSE's application of section 35 of the FOI Act.

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 withheld records and parts of records listed above.

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