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

Case Number: 160424

Whether the HSE was justified in redacting certain records relating to the applicant on the basis that the redactions contain personal information relating to individuals other than the applicant

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

By letter dated 10 March 2016, the applicant submitted a request to the Community Mental Health Services of the HSE for all information arising out of her engagement with the Services during 2007. The HSE issued its decision on 13 June 2016, granting access to 41 records, subject to redactions of certain information from 10 of the records under section 37 of the FOI Act. On 30 June 2016, the applicant sought an internal review of the HSE's decision. The HSE issued its internal review decision on 19 July 2016, in which it affirmed the original decision. The applicant sought a review by this Office of the HSE's decision by way of letter dated 5 October 2016.

In conducting this review I have had regard to the HSE's communications with the applicant as set out above and to the communications between this Office and both the applicant and the HSE on the matter.

 

Scope of Review

The applicant engaged in correspondence with this Office commencing on 2 June 2016, prior to the HSE's decision being issued. Having regard to the applicant's various submissions to this Office, it is clear that, in addition to her request for records, she also wishes for records to be amended. Having examined the applicant's original request, I am satisfied that it cannot be interpreted as a request for the amendment of records under section 9 of the FOI Act. Indeed, the applicant was informed by this Office upon acceptance by this Office of her request for review that only the issue of the release of records would be considered. However, if the applicant wishes to seek the amendment of records, it remains open to her to do so by making a fresh application to the HSE under section 9 of the FOI Act.

I should also explain that it is not clear whether the applicant expected that records held by other bodies would be considered for release on foot of her request. I note, for example, that she referred, in her request for internal review, to the fact that she received a partial file from the HSE in response to her request and "not the complete file with other pieces listed in a different hospital...". The request in this case was made to the Community Mental Health Services and the file held by the Services was released, albeit with certain redactions. During the course of the review, the HSE stated that the applicant had been referred to Beaumont Hospital at the time and that the Hospital may hold further records, as may the Child and Fanily Agency, Tusla. Both of these bodies are FOI bodies in their own right. If the applicant wishes to obtain records held by those bodies, she is entitled to submit a request to them for relevant records.

This review is therefore concerned solely with the question of whether the HSE was justified in its decision to refuse access to parts of the records under section 37 of the FOI Act on the basis that they contain the personal information of third parties.

 

Analysis and Findings

Section 37(1) of the FOI Act provides that a public 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. Furthermore, section 37(7) provides that a public body shall refuse to grant a request if access to the record concerned 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 or individuals other than the requester, commonly referred to as joint personal information.

Having closely examined the contents of the records at issue, which primarily relate to the applicant, I am satisfied that each of the redactions, comprise either personal information relating to various third parties, or joint personal information relating to the applicant and various third parties. I therefore find that the release of the redacted information would involve the disclosure of personal information relating to individuals other than the requester and 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. That is to say, (a) the information contained in the records does not relate only 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.

Furthermore, 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 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, available at www.oic.gov.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 applicant, in her submissions stated made clear that she takes issue with the contents of the records, although her emphasis was firmly on a claim that records should be amended. It would seem to me, on this basis, that what is at issue is essentially a private interest. Nevertheless, the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. In this regard, I note that the HSE has already released a significant amount of information to the applicant.

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. Although I am constrained by section 25(3) from commenting on the HSE's submissions in any detail, I can say that the public body set out detailed reasoning as to why the release of the records would not be in the public interest.

When a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put. While, as previously stated, there is a public interest in openness and transparency, the question before me is whether this is sufficient, on balance, to outweigh the significant public interest in protecting the privacy rights of the individuals to whom that information relates. In my view, it is not. 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 parts of the records at issue under section 37(1) of the FOI Act.

 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the HSE's decision to grant only partial 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.

 

Stephen Rafferty
Senior Investigator