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

Case Number: 150448

Whether the HSE was justified in deciding to refuse access to parts of the applicants' fostering files on the grounds that the records are exempt from release under sections 17 and 37 of the FOI Act

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

By letter dated 27 July 2015, the applicants made an FOI request to the HSE for all records held by a certain part of the HSE in relation to them, including records held by certain named professionals. On 22 September 2015, the HSE released some records in whole or part and refused access to the remaining records under section 17(2)(b)(ii) (copyright) and sections 37(1) and (7) (personal information) of the FOI Act. By letter dated 4 October 2015, the applicants applied for an internal review. On 23 October 2015, the HSE issued its internal review decision, in which it affirmed its original decision. On 21 December 2015 the applicants applied to this Office for a review of the HSE's decision.

In reviewing this case I have had regard to the HSE's decision on the matter; the HSE's communications with this Office; the applicants' communications with this Office; communications between the applicants and the HSE on the matter; and the content of the withheld records provided to this Office by the HSE for the purposes of this review.

Scope of the Review

This review is concerned with whether the HSE was justified in its internal review decision to grant partial access to certain records and refuse access to the remaining records under section 17(2)(b)(ii) and sections 37(1) and (7) of the FOI Act. During this review, the HSE released to the applicants certain additional information within some of those records, which I take into account in this decision. The applicants asked this Office to identify whether certain emails released to them existed in another file. However, as the HSE has now granted access to these emails, they fall outside the scope of this review and I do not propose to consider them further.

I will refer to the redacted parts of the partially granted records and the withheld records collectively as "the records".

Preliminary Matters

Before considering the exemptions claimed, I wish to make the following points.

First, in their application for review, the applicants stated that they had been granted access to other records through FOI and wondered whether further records existed with which they had not been provided. Therefore, this Office contacted the applicants to ascertain whether: (a) they had already been provided with any of the records named on the schedule; and (b) there were any specific records which they believed existed and which they had not been provided with, in which case this Office would make specific enquiries with the HSE about such records. The applicants advised that it was not possible for them to discern whether they already had any of the records named in the HSE's schedule in this matter. They confirmed that they wished for a full review of all the withheld records. They did not identify specific records which they believed existed; therefore this Office did not pursue that matter with the HSE.

Secondly, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the HSE to satisfy me that its decision is justified.

Thirdly, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records at issue is very limited.

Fourthly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. I take the view that neither the definition of a record under section 2 nor the provisions of section 18 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, I am not in favour of the cutting or "dissecting" of records to such an extent.

Finally, with certain limited exceptions (e.g. sections 37(2) and 37(8), which I consider below), the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Analysis and Findings

Section 37 - personal information

The HSE claims this exemption in respect of all of the records except records 49 - 66. Having examined the records, I consider it appropriate to consider section 37 in relation to all of the records except records 61, 62 and 64 (which do not contain any personal information).

Sections 37(1) and 37(7)

Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include "(i) information relating to the educational, medical, psychiatric or psychological history of the individual" and "(xiv) the views or opinions of another person about the individual".

Section 37(7) provides that access to a record which relates to the requester shall be refused if access to the record would, in addition to disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to people other than the requester. This is subject to certain exceptions, which I consider below.

The records relate to: the applicants' fostering of particular children; children who are or were in the foster care of the applicants; parents of children in foster care; family members of the applicants; and other third parties. The majority of the records contain information which relates to third parties. Accordingly, the release of those records would involve the disclosure of personal information relating to individuals other than the applicants. I therefore find that, with the exception of certain records listed below, the records are exempt from release under sections 37(1) and 37(7) of the FOI Act.

In theory, one could extract certain words or phrases from the records which relate solely to the applicants. However, those words and phrases appear in the context of, and are inextricably linked to, other words and phrases which relate primarily to the foster care and welfare of people other than the applicants, namely children in foster care. Having regard to section 18 of the FOI Act, I conclude that to provide the records with isolated words and phrases would be to provide misleading records. My findings under sections 37(1) and 37(7) are subject to the provisions of sections 37(2) and 37(5), which I examine below.

This finding does not apply to the following: the last paragraph of record 72, record 73, the last two paragraphs of record 92 starting at "In relation to...", record 93, record 94, the first two diary entries in record 95, the last paragraph of record 100 starting at "F/mother...", record 101, record 102 (except the last paragraph), records 107 -113, record 114 (except the six lines starting at "private life..." and ending at "...in life" in the third paragraph), records 115 and 116, 155 -162. I consider these records below under section 37(2).

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. Section 37(2)(a) disapplies section 37(1) where the information concerned relates to the requester concerned.

In my view, certain records relate more to the applicants than to the children being fostered. Specifically, they contain professional observations of, and opinions about, the applicants and their suitability for a particular foster placement. I therefore consider that the information in these records falls into the definition of personal information under section 2(xiv) of the FOI Act, by virtue of being "the views or opinions of another person about the individual". Having regard to section 18 of the FOI Act, I consider that it would be practicable to grant access to these records with the redaction of the name (or initials) of the relevant children and any identifying references e.g. a geographical location, such that section 37(2)(a) would apply to them. These records are: the last paragraph of record 72, record 73, the last two paragraphs of record 92 starting at "In relation to...", record 93, record 94, the first two diary entries in record 95, the last paragraph of record 100 starting at "F/mother...", record 101, record 102 (except the last paragraph), records 107 -113, record 114 (except the six lines starting at "private life..." and ending at "...in life" in the third paragraph), records 115 and 116, 155 -162.

However, I am satisfied that none of the circumstances in section 37(2) apply to the records which I have found to be exempt under sections 37(1) and (7) (the remaining records). That is to say, (a) the information contained in the remaining records does not relate solely to the applicants; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information 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.

I am then required to consider section 37(5) as it applies to the remaining records.

Section 37(5) - The Public Interest

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where:

(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 request would benefit the person to whom the information relates.

The July 2011 Supreme Court judgment in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] 1 I.R. 729, [2011] IESC 26 ("the Rotunda case") 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. Therefore in considering section 37(5)(a), I must distinguish private interests from "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. "

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will 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 my view, the information which the remaining records contain is inherently private. It relates principally to the histories of children in foster care and to their welfare. I consider this to be highly sensitive information, which is extremely personal to the third parties concerned. I cannot identify a public interest which would override the Constitutional rights to privacy of the children and other third parties to whom these records relate. I therefore find that section 37(5)(a) does not apply in the circumstances.

It has not been argued that releasing the remaining records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances.

Section 37(8)

Regulations have been made by the Minister in relation to FOI requests where the requester is the parent or guardian of a child to whom the record relates. It has not been argued that the applicants are the legal guardians of any of the individuals referred to in the remaining records and I have no reason to believe that this is the case.

Finding

Having regard to the above, I find that the HSE is not justified in refusing access to the last paragraph of record 72, record 73, the last two paragraphs of record 92 starting at "In relation to...", record 93, record 94, the first two diary entries in record 95, the last paragraph of record 100 starting at "F/mother...", record 101, record 102 (except the last paragraph), records 107 -113, record 114 (except the six lines starting at "private life..." and ending at "...in life" in the third paragraph), records 115 and 116, 155 -162. I find that the HSE is justified in refusing access to the remaining records, under sections 37(1) and 37(7) of the FOI Act.

Section 17(2)(b)(ii) - copyright

The HSE claims section 17(2)(b)(ii) in respect of records 49-66. As I have found that records 49 - 60, 63, 65 and 66 are exempt under section 37, I am not required to consider these records further. I will therefore consider section 17 in relation to records 61, 62 and 64.

The HSE submits that these records are part of a questionnaire which is copyrighted by another organisation and is not owned by the HSE. It says that if they had contained information relating to the applicants, it would have offered them a reasonable opportunity to inspect them. However, it says that they are part of a document which contains personal information relating to a third party and should be viewed in context.

Section 17(3) of the FOI Act provides that the FOI body shall grant access to records in such form as the head of the FOI body considers appropriate, where section 17(2)(b) applies. Section 17(2)(b)(ii) applies where the head of the FOI body decides to grant an FOI request, but is satisfied that giving access to the records in the form requested would involve an infringement of copyright (other than copyright owned by the State, the government or the FOI body concerned).

The HSE's schedule of records does not number each record, but instead numbers each page. I have adopted its numbering in this review. However, "records" 49 - 66 in fact constitute one record, namely a questionnaire. I accept that it is copyrighted, but consider the relevant provisions of the FOI Act to be sections 18 and 37(1). I have already found all the other pages within this record to be exempt under section 37(1). As noted above, the provision to part-grant records under section 18 shall not apply if it would result in a misleading record. I believe that to grant access to records (pages) 61, 62 and 64 would be to provide a misleading record. Accordingly, I find that the HSE is justified in refusing access to these records, under section 37(1) of the FOI Act, having regard to the provisions of section 18.

Section 31(1)(b)

My finding under section 37 above covers records 173 - 189. However, I note that records 173- 189 are stated on their face to have been prepared in the context of a care order application to the courts. Court childcare proceedings are held in camera and it is a contempt of court for any person to disseminate information derived from proceedings held in camera without prior judicial authority. I consider that any record that was created for such proceedings is required to be withheld under the mandatory 31(1)(b) of the FOI Act. Section 31(1)(b) requires that records be withheld where it is known, or ought reasonably to be known, that their disclosure would constitute contempt of court. I therefore find that records 173 - 189, in addition to being exempt under section 37 of the FOI Act, are exempt under section 31(1)(b).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE's decision. I annul its decision to refuse access to the last paragraph of record 72, record 73, the last two paragraphs of record 92 starting at "In relation to...", record 93, record 94, the first two diary entries in record 95, the last paragraph of record 100 starting at "F/mother...", record 101, record 102 (except the last paragraph), records 107 -113, record 114 (except the six lines starting at "private life..." and ending at "...in life" in the third paragraph), records 115 and 116, 155 -162. I direct the release of those records in accordance with the provisions of section 18 of the FOI Act, with the redaction of the name (or initials) of the relevant children and any identifying references e.g. a geographical location. I affirm its decision to refuse access to records 61, 62 and 64, under sections 18 and 37 of the FOI Act. I affirm its decision to refuse access to the remaining records, under sections 37 and 31(1)(b) of the FOI Act.

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator