Decision
Mr A and the Health Service Executive (the HSE)
From Office of the Information Commissioner (OIC)
Case number: 120020
Published on
From Office of the Information Commissioner (OIC)
Case number: 120020
Published on
Whether the HSE was justified in refusing access to further excerpts of records containing allegations made about the applicant
6 February 2014
On 30 September 2011, the applicant made an FOI request for "a copy of all allegations made against [him] to the HSE ... since January 2011 to the present date involving [certain named families]".The HSE's decision of 17 November 2011 released certain records to the applicant, but withheld the remainder on the basis that they contained the personal information of other parties and were exempt under section 28 of the FOI Act. Following the applicant's internal review application of 21 November 2011, the HSE issued an internal review decision on 12 January 2012, upholding its earlier refusal to release all relevant records and relying also on section 26 and "section 21(b)" of the FOI Act. The applicant then sought a review by this Office of the HSE's refusal to fully release all relevant records (which was received on 30 January 2012). In the course of this Office's review, the HSE agreed to release some further excerpts of the records at issue.
In carrying out my review, I have had regard to copies of the records of relevance to the request (which were provided to this Office for the purposes of the Commissioner's review); to correspondence between the HSE and the applicant as set out above; to details of various contacts between this Office and the HSE, and between this Office and An Garda Síochána (the Gardaí); and to details of various contacts between this Office and the applicant. I have had regard also to the provisions of the FOI Act.
The scope of this review is confined to assessing whether or not the HSE's refusal to release all records of relevance to the applicant's request is justified.
It is relevant to note, as a preliminary matter, that section 8(4) of the FOI Act does not allow this review to have regard to any reasons as to why the applicant is seeking the withheld records (although such reasons may be relevant to consideration of the public interest). Furthermore, section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to the Commissioner's satisfaction that its decision was justified. It is relevant to note also that section 43(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record.
Furthermore, the Courts have recognised that the review by this Office is by way of a hearing de novo in the light of the facts and circumstances applying at the date of that review. This means that it is open to this Office to consider the application of particular provisions of the FOI Act not previously relied on by a public body. Finally, it is relevant to be aware that the Courts have found that the release of a record under the FOI Act is akin to its release to the world at large.
References to an allegation(s) made about the applicant are contained in various records that are contained in the file of another person. Section 43(3) precludes me from describing the withheld records in any detail, as to do so may disclose information about that other person. However, I do not consider myself to be in breach of section 43(3) by saying that the withheld details include information about the applicant that was given to the HSE by the Garda, and by another person or persons to whom I will generally refer in the remainder of this decision as the "members of the general public".
Section 23(1)(b) provides that a request for access to a record may be refused if release of the record could "reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence".
I am taking the reference to section "23(b)", as contained in the HSE's email to this Office of 9 January 2014, to pertain to section 23(1)(b) of the FOI Act. Although the email concerned the potential release of information provided by the Garda, I feel that it is appropriate for me to consider the application of section 23(1)(b) to all details in the records at issue.
In order for section 23(1)(b) to apply to a record, three separate requirements must be met.
Firstly, it must be the case that release of the records could lead to the "revelation of the identity" of the person(s) who gave information to the public body.
Having examined the details at issue, I am satisfied that they clearly reveal the identity of the members of the general public, and the Garda, who gave information about the applicant to the HSE. I am also satisfied that directing the release of the content of information provided by the members of the general public could lead to the identification of the person(s) concerned, even if names were to be redacted. However, in the circumstances of this review, I do not consider that release of the content of the information provided to the HSE by the Garda could, of itself, reveal the identity of the Garda that provided it.
Therefore, I am satisfied that the first test of section 23(1)(b) has been met in relation to all of the withheld details, except for the content of the information that the Garda provided to the HSE.
Secondly, the information in question must have been given to the HSE in confidence.
The general public may be reluctant to provide information regarding vulnerable children to the HSE if they did not have an assurance, or understanding, that any information so provided is in confidence. Such an outcome could lead to the HSE not being made aware of potentially vulnerable children, and, in turn, increase the risk of genuine cases of child abuse or neglect going undetected. Thus, I am satisfied that the second test of section 23(1)(b) has been met in respect of those details that were provided to the HSE by members of the general public (in this regard, the outcome of the HSE's investigation is irrelevant).
However, in the circumstances of this case, I do not accept that the information provided by the Garda to the HSE was given in confidence. Accordingly, I find that the second test of section 23(1)(b) is not met in respect of the information provided by the Garda.
Thirdly, and finally, the information in question must have been given to the HSE in relation to the enforcement or administration of the civil law. The Child Care Act 1991 imposes a legal obligation on the HSE to investigate allegations of child abuse or neglect. Sections 3(1) and 3(2) of the Child Care Act, 1991 oblige the HSE to "promote the welfare of children in its area who are not receiving adequate care and protection" and provide that, in the performance of this function, the HSE shall "co-ordinate information from all relevant sources relating to children in its area". Accordingly, I find that the information given by all parties involved relates to the enforcement or administration of the civil law, and that the third requirement of section 23(1)(b) has been met in this case.
Having regard to the above findings, I am satisfied that all three tests of section 23(1)(b) have been met in respect of those records at issue that would lead to the revelation of the identity of those members of the general public that provided information about the applicant to the HSE. I find those records to be exempt under section 23(1)(b), accordingly.
However, I am not satisfied that all three tests of section 23(1)(b) have been met in relation to those records that would lead to the revelation of the identity of the Garda who provided information about the applicant to the HSE. I cannot find the records concerned to be exempt from release under section 23(1)(b), accordingly. I will return to these records later in this decision.
Section 23(1)(b) is subject to section 23(3), which provides that consideration must be given to the possibility that the public interest would be better served by the release of the records to which section 23(1)(b) applies, rather than by those records being withheld, in the event that one of three conditions is fulfilled.
The first condition is that the record under consideration "discloses that an investigation for the purpose of the enforcement of any law ... is not authorised by law or contravenes any law". The second condition is that the record contains information concerning "the performance of the functions of a public body whose functions include functions relating to the enforcement of law" and the third condition is that it contains information concerning "the merits or otherwise or the success or otherwise of any programme, scheme or policy of a public body for preventing, detecting or investigating contraventions of the law". The details to which I have found section 23(1)(b) to apply do not contain any information that satisfies these conditions. Accordingly, I am satisfied that I need not consider the public interest in respect of such details, and that they remain exempt under 23(1)(b) of the FOI Act. Under such circumstances, there is no need for me to consider the application of any other provisions of the FOI Act to the details concerned.
Much of the information provided by the Garda has been released to the applicant, with the exception of a small amount of information comprising the Garda's views of the applicant, and the Garda's name.
The remaining details are contained in the last two sentences of record 8 (in its email to this Office of 11 March 2013, the HSE has said that it considers it appropriate to release the remainder of this record); the details withheld from record 16 (again, the HSE's email to this Office of 11 March 2013 indicated that it would release a social worker's name, which had not previously been released from this record); the second, third and fourth sentences under point 13 of record 50(c); the first, second, third and final sentences of the entry dated 21 June 2011 on page 54, along with the relevant subheading; and the remainder of the second sentence of the second paragraph of the main body of the letter that comprises record 55(a).
Firstly, however, I note that a third party is identifiable from the fifth and sixth words of the second sentence, and the words in parentheses in the third sentence, under point 13 of record 50(c). I consider these details to comprise the joint personal information of the applicant and the third party. I also note that the Garda's mobile phone number is included in the subheading of the entry dated 21 June 2011 on page 54, which I consider to comprise the Garda's personal information. And, although I note the HSE's willingness to release those details in record 8 that do not comprise information provided by the Garda, I note that the third last sentence of the record contains the joint personal information of the applicant and others. Having considered the matter, and the nature of the personal or joint personal information at issue, I consider the public interest in upholding the various third parties' rights to privacy to outweigh the public interest in release of the details concerned. I find accordingly.
Section 34(12)(b) places an onus on the HSE to justify its refusal of the remaining details records at issue. When third parties (such as An Garda Síochána) are involved, it is important that the third party is given an opportunity to make whatever submissions it wishes and that such submissions are taken into account in the final decision on the case.
The HSE's email to this Office of 11 March 2013 indicated that it would be willing to release the records at issue, subject to views from the Garda. On 9 April 2013, this Office invited the Garda to comment on the potential release of his or her name. The Garda expressed personal views by way of a telephone call to this Office on 2 May 2013, but said that a formal reply would have to issue from a superior. This Office subsequently requested receipt of such comments by 19 June 2013. Although no reply was received by that date, it did not prove possible for this case to progress until the appointment of the new Commissioner, in December 2013. In the interim, a submission was received from An Garda Síochána, dated 25 October 2013. Under the circumstances, I have decided to consider the submission concerned. Although submissions were sought, and received, regarding the potential release of the Garda's name, it seem to me that submissions concerned have equal application to the potential release of the views expressed by that Garda.
The submission said that: An Garda Síochána was not subject to the FOI Act; both the "Children First" Guidelines (or to give it its formal title, the "National Guidelines for the Protection and Welfare of Children", which were published by the Department of Health and Children in September 1999 to supplement the Child Care Act, 1991) and the Garda Síochána Code encourage and promote informal communication and consultation in child welfare cases; the aforementioned Guidelines state that records such as those at issue will be considered "third party" records and as such, will be referred to the Garda Commissioner when any release under the FOI Act is being considered; and that section 23(1)(a)(iii) "empowers the HSE to refuse to supply information in their possession obtained from An Garda Síochána, as in doing so, they may impair the procedures put in place to ensure the safety of persons."
In light of this submission, the HSE said, by way of email dated 8 January 2014, that it did not agree to the release of the details concerned. It reiterated "concerns about the quality of the information that would be forthcoming from [An Garda Síochána] in future should material of this nature be released through FOI". In a further email, sent to this Office on 9 January 2014, the HSE said "the role of the Gardaí in these matters goes beyond their legal duty to share child protection concerns"; that any reluctance on the part of the Gardaí to share information of a confidential and sensitive nature with the HSE would "inhibit both the Gardaí and the HSE in their lawful duties"; and, that individuals could possibly be identified from records 16 and 54 such that the applicant "could seek unlawful retribution in regard to same because of the nature of the information disclosed, therefore Section 23(aa) (b) and (c) may also apply. "
An Garda Síochána, like any third party to a review, has no right of veto over the release of records under the FOI Act, regardless of whether or not it is subject to FOI. However, although referring to section 23(1)(a)(iii) of the FOI Act, which provides for the refusal of a record where its release, could, in the opinion of the head of the body, reasonably be expected to prejudice or impair lawful methods, systems, plans or procedures for ensuring the safety of the public ...", its submission does not state how such prejudice could reasonably be expected to arise. While it appears to emphasis the informal nature of the contacts, the submission does not state that Gardaí might refuse to provide the HSE, informally or otherwise, with all necessary information regarding child protection issues. Neither does it explain how such a refusal might be possible, in which regard I note that the submission did not comment on, or refute, this Office's understanding that An Garda Síochána is legally obliged to provide the HSE with all information of relevance to such issues (as per this Office's email dated 17 June 2013). Thus, I do not consider the submission received from An Garda Síochána to have set out any grounds on which the HSE, or this Office, could form or justify an opinion that release of the details at issue could reasonably be expected to prejudice or impair procedures for ensuring the safety of vulnerable children.
It follows that I have no basis to accept that section 21(1)(b) of the FOI Act applies in the case at hand (which I take to be the provision referred to by the HSE in its internal review decision as "section 21(b)"). Section 21(1)(b) provides that a request for access to a record may be refused "if access to the record concerned could, in the opinion of the head, reasonably be expected to have a significant, adverse effect on the performance by a public body of any of its functions relating to management (including industrial relations and management of its staff)". Generally speaking, I accept that the HSE's ability to perform its child protection functions could be impacted upon if there was a general reluctance amongst the general public to voluntarily give it information regarding children who may be at risk.
However, I cannot accept that release of the details at issue would cause Gardaí, in the future, to refuse to provide the HSE with information, whether formally or informally, concerning potentially vulnerable children, or to provide only very limited information or other relevant assistance. This is all the more so when Gardaí are recognised by the "Children First" Guidelines as being are among those "in a position of responsibility in recognising and responding to possible child abuse". As noted in the preceding paragraphs, the submission from an Garda Síochána did not comment on, or refute, this Office's understanding that An Garda Síochána is legally obliged to provide the HSE with all information relevant to child protection matters (as distinct from members of the general public who volunteer such information). Whilst the HSE has said that "the role of the Gardaí in these matters goes beyond their legal duty to share child protection concerns", it has not explained what it meant by this comment or how said role could be impacted on by release of the details at issue. Thus, I have no argued basis on which I could accept the HSE's stated contention that release of the details at issue could reasonably be expected to impact on its ability to carry out its child protection functions, in which case I cannot accept that section 21(1)(b) of the FOI Act applies to the details at issue.
I take the HSE's references to "Section 23(aa) ... and (c)", as contained in the submission sent to this Office on 9 January 2014, to be references to sections 23(1)(aa) and 23(1)(c) of the FOI Act. Section 23(1)(aa) provides for the refusal of a request for a record where its release "could, in the opinion of the head, reasonably be expected to endanger the life or safety of any person". Section 23(1)(c) provides for the refusal of a request for a record where its release "could, in the opinion of the head, reasonably be expected to facilitate the commission of an offence".
As is clear from the preceding, section 34(12) requires that a public body must not merely state that it holds a particular opinion, but must also justify how it arrived at that opinion. The HSE has merely contended that sections 23(1)(aa) and 23(1)(c) of FOI Act apply in the case at hand. However, it has not set out why it considers it reasonable to expect that the applicant "could" act in the manner suggested, nor has it provided any supporting evidence. I do not consider this to be an appropriate basis on which to find that the HSE has justified its reliance on sections 23(1)(aa) and 23(1)(c) and I find accordingly.
Although the HSE referred to sections 28 and 26 of the FOI Act in its decision making process, it was applying the exemptions concerned to a broader range of information than that which is contained in the details that are currently at issue. I note that its recent submissions to this Office did not refer to these provisions, or contain any arguments as to their relevance to the details at hand i.e. to details provided by a Garda in the course of performance of duties as a public servant. Therefore, I do not intend to consider the application of these provisions of the FOI Act.
Having carried out a review under section 34(2) of the FOI Act, I hereby vary the HSE's refusal of the records at issue. I direct that they be withheld with the exception of the last two sentences of record 8; the details withheld from record 16; the second, third and fourth sentences under point 13 of record 50(c); the first, second, third and final sentences of the entry dated 21 June 2011 on page 54, along with the relevant subheading; and the remainder of the second sentence of the second paragraph of the main body of the letter that comprises record 55(a), subject to the redaction of those details in this material that I have found to comprise personal or joint personal information.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Seán Garvey
Senior Investigator