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

Case Number: 160452

Whether the HSE was justified in its decision to refuse the applicant's request for access to information redacted from her medical records on the ground that the information comprises personal information relating to third parties

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

The applicant sought from the HSE all records pertaining to her attendance at an in-patient psychiatric unit in October 2015. In its decision of 11 April 2016, the HSE part granted the request, refusing access to a small amount of information relating to individuals other than the applicant under sections 35 and 37 of the FOI Act.

On 2 May 2016, the applicant requested an internal review of that decision. On 30 May 2016 the HSE affirmed its original decision to refuse access to the redacted information. On 10 October 2016, this Office received an application from the applicant for a review of that decision.

I have now 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 the applicant's medical records, on the ground that the information comprises personal information relating to third parties.

Analysis and Findings

In refusing access to the information at issue, the HSE relied on sections 35 and 37 of the FOI Act. However, in its submission to this Office, the HSE argued that section 37 applies to all the information at issue. As section 37 is, in my view, of most relevance, I will consider that exemption first.

Section 37(1)
Section 37(1) provides for the mandatory refusal of access to a record where the FOI body considers that access would involve the disclosure of personal information relating to individuals 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. 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.

Having reviewed the relevant records and redactions, I am satisfied that all of the withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to personal information relating to other individuals. 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 individuals 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, I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual to whom the information relates. There is a distinction to be made between a request made by a private individual for a private purpose and a request made in the public interest. 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.

While there is a public interest in the HSE being open, transparent and accountable in the manner in which it performs its functions, 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.

The applicant argues that it is fundamentally unreasonable to withhold certain of the information at issue, such as who is recorded as her next of kin. While I can understand the applicant's concerns, I must have regard to the fact that disclosure of a record under FOI is, in effect, disclosure to the world at large, given that the Act places no constraints on the uses to which the information contained in the record may be put.

It seems to me that the public interest in enhancing the transparency and accountability of the HSE in its dealings with the applicant has been served to a large degree by the release of the vast majority of the information it holds on her. In my view, the release of the redacted parts of the records would not further enhance that transparency and accountability to any significant degree. Accordingly, I find that the public interest in the release of the information at issue does not, on balance, outweigh the 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 HSE was justified in its decision to refuse access to the information sought by the applicant in this case.

Having found section 37 to apply, it is not necessary for me to consider the applicability of section 35 to the information at issue.

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