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Discussion Paper on Refusal of FOI Requests to Ensure "Personal Safety"
The following is a discussion paper, sent by the Office of the Information Commissioner to the Department of Finance, concerning exemptions in the FOI Act that may be applicable to records release of which might result in harm or injury to the life or property of an individual, in the absence of a specific exemption that may be invoked to protect "personal safety".
REFUSING FOI REQUESTS TO ENSURE "PERSONAL SAFETY"
Background
Some concern has been expressed as to whether the Freedom of Information (FOI) Act has adequate mechanisms to refuse a request for records where the release of those records might result in harm or injury to the life or property of an individual. The Commissioner adverted to this issue in his Annual Report for 2001 (at Page 24). The Commissioner is very clear in his view that records should not be released under FOI where to do so would create an unacceptable risk to the welfare, life or property of any individual. The Commissioner has never taken the view that the Irish FOI Act does not allow for refusal of a request on such grounds; what he has said is that the Irish FOI Act does not have an explicit "personal safety" clause [apart from the protection at section 8(2)(b) for staff dealing with FOI requests]. He considers that, in the absence of such a clause, there is a need to examine the various options which the Act, in its present form, presents. This note is intended as a contribution to that examination.
To date, issues of personal safety have arisen in only a very small number of cases which have come before the Commissioner for review.
"Risk" Scenarios
The perceived risk may relate to the requester, to staff of the public body concerned or to third parties (usually family, friends or neighbours of the requester). In some cases, the risk may be one of damage to property of an individual or organisation.
In the case of medical, psychiatric or social work records there is an explicit provision [at section 28(3)] to protect the requester where release of the records "might be prejudicial" to his or her health or well-being. However, there can be instances where release of such records might endanger the health or well-being of some other party - this might be a friend or family member who has given information to a psychiatrist about the requester or it might be a health professional or social worker who has expressed a particular opinion about the requester (e.g. a social worker who believes that children are not safe with the requester).
In the case of housing records of local authorities, and particularly in the context of investigating anti-social behaviour, there might be a risk to officials involved in the investigation or to family, friends or neighbours who have given information (or complained) to local authority staff or to the Gardaí. In the case of records relating to the investigation of social welfare fraud or tax evasion there might also, occasionally, be a perceived risk that release of records would put identifiable officials or informants at risk.
Whatever the particular case, it is very important that the concern for the health or welfare of the "at risk" individual (including concern of a risk of damage to the property of any individual or organisation) be well-founded. The Commissioner takes the view that it is not enough to assert that such a risk exists. Rather, such an assertion must be supported by tangible evidence. Examples of such evidence would include: a history of violence or abusive/intimidatory behaviour on the part of the requester; threats of violence or of damage to property; the expressed opinion of a professional (typically a psychiatrist, a clinical psychologist or a social worker) that access to the records is likely to result in violence or other unacceptable behaviour on the part of the requester. In some cases the opinion of a person who knows the requester well, and who has played some kind of "helping" role in relation to the requester, may be acceptable evidence even where that person has no relevant professional qualifications.
FOI Act Provisions of Relevance
Section 28(3) and (4)
Primarily, these provisions apply where the release of medical/psychiatric/social work records to the requester might be prejudicial to the health, well-being or emotional condition of the requester. By extension, these provisions might also be found applicable where there is a fear that release of such records will prompt violence or other inappropriate behaviour by the requester and directed against a third party. In this latter instance, it may be reasonable to conclude that any such unacceptable behaviour by the requester, while primarily impacting on the third party, impacts negatively on the requester also.
Where section 28(3) is invoked, the public body is required under section 28(4) to offer the records in question to a health professional "specified" by the requester. Section 28(3) provides that access to the records by the requester is refused. It would seem to follow that the "specified" professional, to whom access is given, is to give information contained in the records (or, indeed, the records themselves) to the requester in a manner which will not be prejudicial to the requester.
Whereas the Act is not specific as to the action to be taken by the health professional who receives such records, the Commissioner believes that such health professionals are professionally bound (as in all dealings with patients or clients) to act in the best interests of that patient or client. The health professional will be required to exercise all due care to ensure that whatever information is conveyed, and in whatever manner, does not have the effect of prejudicing the health and well-being of that patient or client. Due care, in this context, includes an assessment of whether release of information or records might prompt unacceptable behaviour, directed towards third parties, on the part of the patient or client.
The Commissioner is quite satisfied that in sending records to a health professional under section 28(4), the public body concerned is quite entitled, if not obliged, to give that health professional full details of the reasons why the records were not released to the requester. Where section 28(3) has been invoked in a situation of perceived threat to third parties, the public body should provide details of any history of violence or threats of violence on the part of the requester as well as any professional assessments available which suggest the requester may react inappropriately in the event of acquiring certain information.
The Commissioner recognises that, ultimately, it is a matter for the health professional to decide the extent to which records or information should be made available to the requester. However, any failure to exercise due care by that health professional could expose the professional to a charge of professional negligence. It might be useful in this context were the Central Policy Unit of the Department of Finance to consult with the professional bodies concerned with a view to raising awareness of the issues arising. Indeed, were some form of guidance to be issued by the professional bodies for their members, this would be very desirable.
Section 23(1)
Section 28(3) is an option only where the records sought fall into the category of medical/psychiatric/social work records. The issue arises as to whether in relation to other types of records - or even in relation to medical/psychiatric/social work records - section 23(1)(c) might be applicable. This provision applies where access to the record sought "could ... reasonably be expected to ... facilitate the commission of an offence".
In the very small number of cases in which the Commissioner has had to consider the application of section 23(1)(c), he has tended to the view that "facilitate" should be interpreted in the sense of "make easier". The argument has been made that "facilitate" might also be deemed to encompass the notion of "making it more likely" that (in this context) an offence will be committed. For example, giving a psychiatric patient his records might (in a small minority of cases) incite a violent response; providing the records does not make the act of violence any easier but it may make it more likely. The Commissioner accepts that in individual cases the circumstances may be such that the granting of records may be so patently likely to provoke a violent reaction that one could, in all reasonableness, conclude that the granting of the records would "facilitate" the commission of an offence. However, as already outlined above, such a conclusion should only be reached on the basis of tangible evidence.
In a recent case involving a perceived threat to the personal safety of third parties (the context was one of alleged anti-social behaviour within a local authority housing estate), the Commissioner relied, amongst other provisions in the particular case, on section 23(1)(a)(ii) and (iii) and on section 23(1)(b). Taking all of these provisions together, the logic was that the release of records or part-records which identified people who had complained about the behaviour of the requester, or which identified officials who had investigated and dealt with the requester, might reasonably be expected to prejudice or impair "compliance" with the law, i.e. identifying these third parties made it more likely that the requester would attack or intimidate these people or their property. Furthermore, if release of records was seen as making it more likely that an offence would be committed, then this might reasonably be expected to prejudice or impair lawful methods "for ensuring the safety or security of persons and property".
A drawback in invoking the section 23(1) option for this type of case is that it draws the attention of the requester to the view that he or she is perceived as potentially violent. This is because section 8(2)(d)(i) requires that reasons be given where a request is refused. More particularly, invoking section 23(1) may draw attention to the fact that a specific person is in fear of the requester or that the public body fears that the requester may harm some particular person. The act of drawing the attention of the requester to these fears may, in certain circumstances, actually make it more likely that the requester will react violently. In this type of scenario, even though the records sought have not been released, the contents of the decision may provoke the very behaviour the decision was intended to prevent. Accordingly, the various provisions of section 23(1) will not always be satisfactory options in cases involving risk to the "personal safety" of individuals.
There has been a suggestion that recourse might be had to section 23(2) - not disclose whether or not the records actually exist - but this would hardly be possible in most cases where the records requested would self-evidently exist. However, it might be useful to look at whether section 8(5) offers any flexibility in terms of withholding the precise provision, within section 23, on which the decision is based. This will be the case only where it can be decided that to refer in the decision to the specific provision within section 23 is itself to disclose information which would be exempt e.g. if the record contained a statement that release of the record would be likely to lead to ("facilitate"?) the commission of an offence, this statement would be likely to be exempt on the grounds that identifying the risk may well make it more likely the risk will materialise. A variation on this approach is to cite the actual FOI Act provision relied upon for the decision while, at the same time, withholding the detailed analysis or description which makes clear why this provision applies to the particular case. These are options which may need to be considered in more detail. (NOTE: The option to invoke section 8(5) appears not to be available to the Information Commissioner as section 8 governs the giving of decisions by public bodies only. The nearest equivalent provision, as applying to the Information Commissioner, is section 43(3); but this differs from section 8(5) in that it does not deal with information which would be exempt rather it deals with "information contained in an exempt record". Further consideration, of the manner in which the Commissioner might invoke section 43(3) is needed)
Section 12
Section 12 deals with the manner in which access is to be given once a request has been granted. In the normal course, access is granted in the form or manner specified by the requester. The option to provide a "transcript of the information concerned" rather than a copy of the actual record, may be of help where concealing the identity of the author (e.g. by preventing identification via hand-writing style) is desirable in the interests of ensuring the safety of the author. Such an approach might be justified on the basis of section 12(2)(b)(iii). Whether the term "transcript of the information concerned" allows for any editing of the content of the record - provided always that the information is conveyed - may be worth some consideration.
Conclusion
It is clear the FOI Act, while not having a specific exemption to ensure the personal safety of third parties or their property, does have a number of provisions which might be invoked to achieve the same purpose. Ultimately, a specific "personal safety" exemption might be useful; but even with such a provision, it remains the case that informing the requester that such a provision (or one of the section 23 options outlined above) is being invoked creates difficulties. This is because the requester will be put on notice that some people are in fear of him/her. Finding a solution to this dilemma will require considerable further thought.
Office of the Information Commissioner
3 February 2003
