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

Case Number: 160070

Whether the National Ambulance Service of the HSE (the NAS) was justified in its decision to refuse a request under sections 32 and 37 of the FOI Act, for access to records relating to a call to the emergency services and an investigation report, concerning the circumstances of a road traffic accident in 2013

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 19 June 2015, the applicant submitted a request to the HSE under the FOI Act for access to records concerning details of an investigation report and contact with the emergency services in December 2013, following a road traffic accident in which the applicant's wife tragically died. The applicant identified six parts to his request and the National Ambulance Service (NAS) of the HSE made its decision on that basis. The NAS released a number of records and refused access in full or in part to others on the basis of sections 32(1)(a)(iv) and 37(1) of the FOI Act. The applicant submitted a request for an internal review, following which, the NAS affirmed the original decision. On 16 February 2016, the applicant made an application to this Office for a review of the decision of the NAS.

In examining the records the subject of the FOI request, I note that the NAS released in full, records associated with part 3 (ambulance logs) and part 5 (details of observations and medical treatment) of the request. I also note that the queries raised by the applicant in part 6 (calls to and from the Ambulance Control and other agencies) of the request were addressed by the NAS in its decision. In his application, and in other correspondence to this Office, the applicant specifically mentioned records relating to parts 1 and 4 of his request. Part 1 concerns all records associated with the emergency callout and subsequent investigations report and part 4 is a record of a transcript of the telephone call made to the emergency services on the evening of the accident. During the course of this review, the NAS confirmed that a second emergency call in relation to the incident was made, and a transcript of that call was provided to this Office. Consequently, in reviewing part 4 of the applicant's request, I have decided to include in the review the record of the transcript of that second call.

I note that the NAS part granted access to the records in part 2 (calls logged by the Ambulance Service) on the basis of section 37(1) of the Act (Personal information of persons other than the applicant). The applicant did not make specific reference to this part of the decision in his application. However, for the sake of completeness, I have decided to include a review of the decision of the NAS on part 2 of the applicant's request.

The applicant was invited to make a written submission to this Office but none was received. However, a member of his family was in telephone contact with the Investigator.

In conducting my review, I have had regard to the submission of the NAS and to contacts between the applicant, his representative, the NAS 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 concerned with whether the NAS was justified in deciding to refuse access in full or in part to records relating to parts 1, 2 and 4 of the applicant's request, on the basis of sections 32(1)(a)(iv), and 37(1) of the FOI Act.

Preliminary Matters

The circumstances that gave rise to the FOI request by the applicant are tragic and I appreciate that the applicant and his family have suffered greatly. However, I should add that section 13(4) of the Act requires that, subject to the provisions of 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.

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.

While 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, 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, 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.

I would note here that reviews carried out by this Office are de novo reviews, which means that the Commissioner considers all of the circumstances and information which exist on the date of a decision.

Finally, I note that many of the records relate to the personal information of the applicant's deceased wife. The NAS has said that it is satisfied that the applicant is a suitable person (a spouse) who has a potential right of access to his late wife's personal information under section 37(8) of the Act and the associated 2009 Regulations (SI. No. 387 of 2009). I intend to proceed on that basis.

Findings

In its submission to this Office, dated 27 June 2016, the NAS confirmed that it had refused access to the records associated with part 1 of the request on the basis of section 32(1)(a)(iv) of the FOI Act. However, it also stated in the submission that it claims exemption for those records on the basis of sections 15(1)(c), 31(1)(a) and 37 of the Act. I will consider the exemption at section 15(1)(c) of the Act first.

Section 15(1)(c)
Section 15(1)(c) permits an FOI body to refuse a request for records where the body considers that granting the request would, by reason of the number or nature of the records concerned, or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of work (including disruption of work in a particular functional area) of the body.

However, under section 15(4), a body is not entitled to refuse a request under section 15(1)(c) unless it has assisted or offered to assist the requester to amend the request so that it no longer falls within the parameters of section 15(1)(c).

In its submission, the NAS, in relying on section 15(1)(c), stated that "the "examination" of the records in question [part 1 of the original request] would entail a "substantial and unreasonable interference with or disruption of work" of the NAS or one or more functional areas of the NAS, given the extent of the records and the breadth and complexity of the considerations arising in respect of each record". Following a request from this Office for clarification on whether the NAS had examined all of the records within part 1 of the request, the NAS replied that it had "...broadly examined the records and further examined a sample of the records in greater detail to make this judgement".

The NAS stated that it had not addressed the exemption at section 15(1)(c) in its decision to the applicant because it had decided to refuse the request on the basis of section 32(1)(a)(iv). In addition, as stated earlier, while the NAS also relied on sections 31(1)(a) and 37(1) to withhold in full or in part certain records contained within part 1, it did not identify specific records. The NAS also acknowledged that it had not complied with the requirements of section 15(4), as described above.

Consequently, as the NAS did not offer to assist the applicant to amend his request, it is clear that it failed to comply with the provisions of section 15(4) of the Act and accordingly, I find that it was not entitled to refuse access to the records at part 1 of the request, under section 15(1)(c).

Section 31(1)(a), section 32(1)(a)(iv) & section 37(1) - (concerning part 1 of the request)
I will refer in more detail later in this decision to these exemptions as they relate to other records within the scope of this review. It seems that the NAS has not undertaken any substantial consideration of the content of the individual records associated with part 1 of the applicant's original request. I consider that it is not appropriate or valid for the Commissioner to make a first instance decision or to take the same "blanket" approach concerning those other exemption provisions, as they have been applied by the NAS to part 1 of the request.

Therefore, taking account of section 22(12)(b) and following careful consideration, I find that the decision of the NAS on this part of the original request should be annulled. The effect of this is that the NAS is required to make a new, first instance, decision in respect of part 1 of the applicant's original request. However, as discussed above, if the NAS takes the view that the request, as it relates to part 1, is particularly voluminous, it is open to it to consider its options under section 15 of the Act.

Section 37 - personal information
The NAS refused access in part to records associated with part 2 of the applicant's request, under section 37(1) of the Act. However, while it withheld in full the record associated with part 4 of the request on the basis of section 32(1)(a)(iv), I am satisfied that section 37, which is a mandatory exemption, is the most appropriate exemption to apply to that record also, given the extent of personal information that appears in the record.

Section 37(1)
Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. In a situation where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information about another party (or parties), and where it is not feasible to separate the personal information from that relating to the other party (or parties), it can be described as joint personal information. Section 37(7) further provides for the refusal of a request where the body considers that access to the record 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 other than the requester.

The FOI Act defines the term "personal information" as information about an identifiable individual that either (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 an FOI body on the understanding that it would be treated by the body as confidential. Section 2 of the Act details fourteen specific categories of information which is personal information without prejudice to the generality of (a) and (b). These categories include "(vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual, (ix) a number, letter, symbol, word, mark or other thing assigned to the individual by an FOI body for the purpose of identification or any mark or other thing used for that purpose, and (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual".

The records at part 2 of the original request are transcripts of calls logged by the Ambulance Services for the wider geographical area in which the accident occurred and on the day of the accident. In his request to the NAS, the applicant requested copies of "all 999 calls made" in relation to the accident involving his late wife. The applicant also queried with this Office whether a second call had been made on that day in addition to the call originally identified in the decision of the NAS. As mentioned earlier, during the course of this review, the NAS provided this Office with a transcript of a second emergency call that was made in relation to the incident. The record of that second call is included in the review of part 4 of the applicant's request. From the transcripts of both calls, it is clear that the emergency services were contacted by identifiable third parties.

Having reviewed the relevant records at part 2 and part 4 of the request, I am satisfied that the withheld information is personal information relating to individuals other than the applicant. It is "joint personal information", in that the information of the applicant's late wife is interwoven with that of other identifiable individuals. I do not consider that redaction of the names or other information would, in the circumstances of this case, mean that the individuals would no longer be identifiable. I understand also that the applicant may have obtained, outside of FOI, a copy of at least one of the calls made to the emergency services, concerning part 4 of his request. However, I do not believe that this entitles me to disregard the provisions of section 37 of the FOI Act.

Accordingly, I find that sections 37(1) and 37(7) of the Act apply to those records, subject to the provisions of sections 37(2) and 37(5), which I examine below.

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.

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 (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, arising from tragic events greatly affecting the applicant and his family. However, I should explain at this stage that the release of a record under the FOI Act amounts, in effect, to disclosure to "the world at large", as the Act places no restrictions on the subsequent uses to which a released record may be put.
There is a public interest in openness and transparency in the manner in which the NAS and the HSE perform their functions. However, this public interest has been served, to some extent, by the full and partial release of some of the records at issue, as well as by inquiries into the circumstances of the fatal accident which have yet to be completed. 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. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that the NAS was justified in its decision to refuse access in part, or in full to the records at parts 2 and 4, respectively, under sections 37(1) and 37(7) of the FOI Act.
Having found the records at part 4 of the request to be exempt under section 37, I do not consider it necessary to make a finding on the decision of the NAS concerning those records under section 32 of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act 2014, I hereby vary the decision of the NAS in this case. I annul the decision in respect of part 1 of request and I direct the NAS to undertake a fresh decision-making process in respect of that part of the request, as set out above, and to inform the applicant of the outcome of its decision, in accordance with section 13 of the FOI Act. I affirm the decision as it related to part 2 of the request to withhold in part, access to records under section 37(1) of the Act. I vary the decision in relation to part 4, and refuse access to those records, under sections 37(1) and 37(7) of the 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