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

Case Number: 160192

Whether the HSE was justified in its decision to refuse the applicant's request for access to a paragraph of a letter her mother sent to St Luke's Hospital on the ground that it contains personal information relating to a third party

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 13 January 2016, the applicant sought access to the medical records of her late brother who was a patient at St. Luke's Hospital, Clonmel (the Hospital). In its decision of 9 February 2016, the HSE part granted the request, refusing access to parts of three pages of records under sections 35 and 37 of the FOI Act.

On 1 March 2016, the applicant requested an internal review of that decision in relation to the redaction of a paragraph of a letter her mother sent to the Hospital. On 4 April 2016 the HSE affirmed its original decision to refuse access to that paragraph under section 37 of the Act, on the basis that the paragraph contained personal information of a third party. On 28 April 2016, the applicant applied to this Office for a review of that decision.

I note that during the course of this review Mr Benjamin O'Gorman of this Office contacted the applicant and informed her of his view that the HSE was justified in redacting the information at issue. I further note that the applicant disagreed, and indicated she wished for the review to progress to a formal decision.

Consequently, I have decided to conclude this review by way of a formal binding decision. In concluding this review, I have had regard to correspondence between the applicant and the HSE, to correspondence between the applicant and this Office, to correspondence between the HSE and this Office, and to the contents of the record at issue.

 

Scope of Review

This review is concerned solely with the question of whether the HSE was justified in its decision to refuse access to certain information contained in a letter between the applicant's mother and the Hospital, on the ground that the information comprises personal information relating to a third party.

 

Analysis and Findings

Section 37(1) of the FOI Act provides for the mandatory refusal of a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. In its internal review decision, the HSE informed the applicant that the information redacted from the record in question comprises personal information relating to a third party and that the third party in question was not the applicant's mother or her late brother. Having examined the record, I agree. Accordingly, I find that section 37(1) applies.

There are some circumstances, provided for at section 37(2), in which section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case.

Section 37(5) provides that a record which is otherwise exempt under section 37(1) 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. No evidence has been presented to this Office to suggest that the release of the withheld information would benefit the individual to whom the information relates. I find, therefore, that section 37(5)(b) does not apply.

On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individuals to whom the information relates. In determining this question, I have had regard to the obiter comments of the Supreme Court in 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; [2012] 1 I.L.R.M. 301 (the Rotunda case), wherein I note that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

In her application and submission to this Office, the applicant has, in essence, argued that the record should be released to her without redaction to allow her to gain a better understanding of how her mother dealt with her late brother's illness. 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, it seems to me that the applicant has identified a specific private interest in accessing the information at issue. Nevertheless, The Long Title of the FOI Act reflects that there is a general public interest in openness and accountability with respect to information held by public bodies, provided that it is consistent with the right to privacy.

On the other hand, the public interest in respecting the right to privacy is a very strong public interest and is recognised in the language of section 37 of the FOI Act. This public interest in protecting privacy rights is also reflected in the Long Title to the Act. Furthermore, the right to privacy has been recognised as an unenumerated right under the Constitution. I am also mindful that the strong protection afforded to privacy rights under FOI is consistent with Article 8 of the European Convention on Human Rights. Also, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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.

The applicant has made it clear that she would treat the information as confidential in the event that access was granted. While I have no doubt that she would do so, I must have regard to the fact that when a record is released under the FOI Act, this, in effect, amounts to disclosure to "the world at large" because the Act places no restrictions on the subsequent uses to which the record may be put. Having carefully considered the matter, I do not consider that the public interest in the release of the redacted information in the record at issue outweighs, on balance, the significant public interest in protecting the privacy rights of the person to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that the HSE was justified in its decision to refuse access to the information sought by the applicant in this case.

 

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 in this case.

 

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