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Ms L and HSE South (FOI Act 2014)

Case Number: 160275

Whether the HSE was justified in its decision to redact the identities of third parties contained in the applicant's medical records under section 37(1) of the FOI Act

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

Background

On 14 November 2015, the applicant submitted a request to Mercy University Hospital, Cork for access to her medical records from 2015. As the hospital could not locate relevant records, it contacted the applicant wherein she confirmed that she was seeking access to records which were held by St Michael's Psychiatric Unit, which is part of the HSE. The FOI request was transferred to the HSE, who granted access to the records held, with a small number of redactions of what it deemed to be personal information of third parties.

The applicant sought an internal review of that decision and on 15 March 2016, the HSE affirmed the decision to redact certain information from the records. The applicant sought a review by this Office of the HSE's decision on 21 June 2016.

In conducting this review I have had regard to correspondence between the applicant and the HSE in relation to her request and to correspondence between this Office and both the applicant and the HSE on the matter. I have also had regard to the contents of the records at issue. In referring to the records at issue, I have adopted the numbering system used by the HSE in the schedule of records it prepared when processing the request.

Scope of Review

The HSE redacted a small amount of information from pages 124, 155, 156, 162, 167, and 180. During the course of the review the HSE stated that the information withheld from page 180 relates to the applicant's GP that is publicly available and that it can arrange for the release of that information. Accordingly the scope of this review is concerned solely with whether the HSE was justified in redacting certain information from pages 124, 155, 156, 162 and 167.

Analysis and Findings

The information redacted from the records at issue comprises the names of individuals other than the applicant. Section 37(1) of the FOI Act is a mandatory exemption which 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.

Under 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. The FOI Act details fourteen specific categories of information that is personal including "...(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", and "...(xiv) the views or opinions of another person about the individual".

The HSE stated that none of the third parties whose names have been redacted are staff of the HSE. In the circumstances of this case, I am satisfied that the disclosure of the redacted material would involve the disclosure of personal information relating to individuals other than the applicant. I find, therefore, that section 37(1) applies. 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.

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 individuals 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 where the balance of the public interest lies, 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, [2013] 1 I.R.1. In that judgment, the 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).

In line with the Rotunda judgment, 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. In this case, the applicant has indicated that she wishes to know the identities of the third parties concerned so that she can get their permission for her records to be fully disclosed to her. While this would appear to represent a specific private interest in accessing the information at issue, the Long Title of the FOI Act nevertheless reflects that there is a general public interest in openness and accountability with respect to information held by public bodies.

On the other hand, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "the right to privacy"). It is also worth noting that the right to privacy has a Constitutional dimension, as one of the unenumerated personal rights under the Constitution. 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.

In this case, it seems to me that the public interest in optimising openness and transparency with respect to the information it holds has been served to a large degree by the disclosure of the vast majority of the information held relating to the applicant, apart from the identities of a number of third parties. The question I must consider is whether the public interest in disclosing those identities outweighs, on balance, the significant public interest in protecting the privacy rights of the individuals concerned. In my view, it does not. In forming this view, I am conscious of the fact that under FOI, records are released without any restriction as to how they may be used and, thus, release under FOI is regarded, in effect, as release to the world at large. I find, therefore, that section 37(5)(a) does not apply, and that the HSE was justified in redacting certain information from pages 124, 155, 156, 162, and 167 under section 37(1).

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 to redact certain information from pages 124, 155, 156, 162, and 167.

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.

Stephen Rafferty
Senior Investigator