Decision
Mr U and the Health Service Executive (HSE)
From Office of the Information Commissioner (OIC)
Case number: 120136
Published on
From Office of the Information Commissioner (OIC)
Case number: 120136
Published on
Whether the HSE was justified in its decision to refuse a request for access to records relating to an allegation about the applicant's son on the basis that sections 10(1)(a) and 28 of the FOI Act apply
17 October 2014
On 13 February 2012, the applicant made an FOI request to the HSE seeking access to all records "concerning a report of illicit drugs that my son [named] was reported as being involved in. This is to include all or any actual recorded interviews, telephone calls and or statements made." The applicant also sought "full disclosure of said accuser and accusations". On 30 March 2012, the HSE's decision maker informed the applicant she had viewed the Social Work file but could not find any mention of the name of the person giving this information to the HSE as the information was given anonymously. She enclosed copies of correspondence that had already issued to the applicant from the HSE concerning the allegation together with a social worker case note.
The applicant requested an internal review of this decision on 10 April 2012. On 29 May 2012, the HSE issued a decision on the internal review in which one further record was released to the applicant which had the name of his son's school principal redacted. The HSE later released the name of the school principal to the applicant. On 11 June 2012 the applicant applied to this Office for a review of the HSE's decision and sought full disclosure of the HSE's file in relation to the original allegation. In my view, the HSE, in confining the scope of the request to the "name of the person giving the information", adopted an unduly narrow interpretation of the original request. The HSE seems to have regarded itself as granting the request insofar as it held relevant records and it did not take a position on the remaining records that were actually requested.
During the course of the review, the HSE agreed to release a two page form, dated 4 April 2011, which was filled out by the Duty Social Worker and which recorded the original allegation about the applicant's son. This record notes that the allegation about the applicant's son was made anonymously to the HSE. Following correspondence from this Office, the applicant indicated that he wished to pursue his application for review in relation to the remaining records held by the HSE concerning the report of illicit drugs involving his son.
I have now completed my review in accordance with section 34(2) of the FOI Act. In carrying out my review, I have had regard to the submissions of the applicant (including those made to both the HSE and this Office), the content of the records and the provisions of the FOI Act and Regulations made thereunder.
The scope of this review is solely whether or not the HSE was justified, in accordance with the provisions of the FOI Act, in deciding to refuse access to further records from the Social Work file relevant to the applicant's request. The review focuses on two elements, namely (1) the identity of the anonymous caller to the HSE and (2) the records containing "all and any actual recorded interviews, telephone calls and / or statements made etc."
Before setting out my findings, I should point out that while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. This constraint means that, in the present case, the extent of the reasons that I can give is limited. However, I am mindful of the burden of proof under section 34(12)(b) of the Act, which requires the HSE to show to my satisfaction that its decision to refuse to grant the request was justified.
In addition, it is relevant to note that under section 8(4) of the FOI Act, the actual or perceived reasons for a request must, subject to the provisions of the Act, be disregarded by the decision maker, including the Information Commissioner.
I should also explain the approach to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 13 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent.
Furthermore, a review, such as this, is a de novo review. This means that it is a review taking account of the facts and circumstances prevailing at the point at which the Commissioner concludes the review. Where the circumstances have changed since the time of the original decision, or where new facts have emerged, the Commissioner must have regard to these new facts and to any change of circumstances. This is the position as set out by the High Court in the judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116.
Finally, the release of a record under the FOI Act is taken as being release to the world at large. The Act places no restrictions on the subsequent use to which any record released may be put.
I note that the applicant requested specific information which would help him identify the source of the anonymous allegations of illicit drug taking which were made in relation to his son. However, the FOI Act confers a general right of access to records, rather than a general right of access to information.
This means that, if the information sought is not contained in a record, the FOI Act does not impose an obligation on a public body to create a record where none exists; nor does it provide a mechanism for answering questions, or for seeking clarification, except to the extent that the question posed or clarification sought can reasonably be inferred to be a request for a relevant record that exists as of the date of the request, and which contains the answer or clarification sought.
Therefore, the applicant's request for information regarding the identity of the person who made the complaint to the HSE falls to be treated as a request for access to actual records held by the HSE which contain the information the applicant is seeking.
The HSE contends that all details regarding the source of the anonymous complaint have already been released to the applicant. This, in effect, amounts to a refusal of the request pursuant to the provisions of section 10(1)(a) of the FOI Act. Section 10(1)(a) provides that
"(1) a head to whom a request under section 7 is made may refuse to grant the request if - (a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken."
The Commissioner's role in cases such as this is to review the decision of the public body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website at www.oic.ie).
In this particular case, the HSE contends that the complaint referred to in the original FOI request was made by way of an anonymous phone call and, as such, it was not provided with a name, address, contact number or any other details of the person who made the complaint. Therefore, the HSE's position is that it holds no records which contain the name or identifying details of the complainant. The HSE explains that all social work related records are maintained on the electronic RAISE system. This system is used to detail telephone calls and contacts made to the HSE. The HSE maintains that, having conducted its searches, it can find no further records in relation to the anonymous allegation of illicit drug taking.
I note that Ms Dunn, Investigator, provided the applicant with details of the searches which were conducted by the HSE to locate all records relating to the identity of the complainant. This included a search of the RAISE system and an examination of the social work file. Having reviewed the details of the searches undertaken, I am satisfied that the HSE has taken all reasonable steps to locate records which might contain details of the identity of the complainant. I find, therefore, that in relation to the identity of the anonymous complainant, the HSE was justified in deciding that section 10(1)(a) of the FOI Act applies.
Personal information is defined in section 2 of the FOI Act 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. I am satisfied from an examination of the records - which include specific references to the applicant, his son and other parties - all contain "personal information" as defined by section 2 of the FOI Act.
Section 28(1) provides that a public body shall refuse to grant access to a record where access would involve the disclosure of personal information, including personal information relating to a deceased individual. Section 28(5B) of the FOI Act provides that where a record contains joint personal information, i.e. personal information about two or more individuals, third party information must, subject to the other provisions of section 28, remain protected. In this case, the personal information relating to the applicant and his son is intertwined with the personal information of other individuals, including family members. While personal information can be released if the person to whom it relates consents to its disclosure, as a general rule, the release of joint personal information requires the consent of all of the individuals to whom it relates, unless section 28(5) of the FOI Act applies.
Section 28(2) provides for the release of a record to which section 28(1) applies in a number of circumstances. These are: where the record relates to the applicant; where the third party consents to the release of the records to the applicant; where the information is of a kind that is available to the general public; where the third party was informed prior to the information being given that it belonged to a class of information that would or might be made available to the general public; or, finally, where disclosure of the information is necessary to avoid a serious and imminent danger to the life or health of an individual. I am satisfied that none of the circumstances identified at section 28(2) arises in this case.
Section 28(5) of the FOI Act provides that a request, which would fall to be refused under section 28(1), may still be granted where:
"on balance-
(a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or
(b) the grant of the request would benefit the individual aforesaid,"
In relation to the question of where the public interest lies under section 28(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[2011] 1 I.R. 729, [2011] IESC26 (known as "the Rotunda judgment"). The Supreme Court drew a distinction between private interests and public interests. The comments of Fennelly J. indicate that a request made "by a private individual for a private purpose" is not a request "made in the public interest". Moreover, in the opinion of Macken J., the public interest would require "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law".
I further note that the FOI Act itself recognises a very strong public interest in protecting privacy rights, as reflected both in the language of section 28 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"). 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 the right to privacy.
On the other hand, the FOI Act itself also recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. In this particular case, the withheld records are Case Recording Summaries and other notes detailing contact between the Social Worker and third parties in relation to the anonymous allegation which was made to the HSE.
On the basis of the contents of the released records, including the reports made available to the applicant, I believe that he already has information which enables him to understand the role and actions of the HSE in this case. I consider that the extent to which his understanding of the HSE involvement with his son and other parties would be enhanced by release of the withheld information would not warrant the corresponding degree of invasion of privacy of the third parties involved.
In summary, having examined the withheld details, I do not consider that their release would further serve the public interest to such an extent that a breach of the third parties' Constitutional rights to privacy is justified. In coming to this view I am particularly conscious that the applicant's son has indicated that he does not want to re-visit the matter. Thus, I find that the withheld details should not be released further to section 28(5)(a) of the FOI Act.
Section 28(5)(b) provides that personal information of a party other than the requester may be released where, on balance, the grant of the request would be to the benefit of the person to whom the information relates. In the case of a child, one would accept as a general proposition that it is to the benefit of a child that his/her parents should be given access to all relevant information which bears on the child's health, welfare and general well-being. However, in this case, the applicant's son is seventeen years of age and approaching his age of majority. The applicant's son has indicated that he does not want to re-visit the matter. Therefore, because of
my view is that, on balance, release of the son's personal information under the FOI Act would not be to his benefit. I find, therefore, that section 28(5)(b) does not apply in this case.
Section 28(6) - Access by parents or guardians to the personal information of minors
Section 28(6) provides that, notwithstanding subsection (1), the Minister for Finance may provide by regulations for the grant of access where "the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual". The Freedom of Information Act 1997 (Section 28(6)) Regulations, 2009 (S.I. No. 387 of 2009), in turn, make provision for access by parents or guardians to personal information in relation to minors in certain circumstances.
The Regulations provide that a request for records relating to personal information about a minor shall be granted where the requester is the minor's parent or guardian and where, having regard to all the circumstances and to any guidelines drawn up and published by the Minister, access to the records would be in the minor's best interests. The issue to be decided, therefore, is whether the best interests of the applicant's son will be served by the release to the applicant of those records disclosing his son's personal information.
Guidance Notes have been published by the Minister for consideration by decision makers in applying the 2009 Regulations. The Guidance Notes specify certain factors to be taken into consideration in determining:
Furthermore, in its judgment in the case of McK v. The Information Commissioner[2006] 1 I.R. 260, the Supreme Court commented that the views of a minor nearing the age of majority on the question of the release of information affecting his privacy rights are "very relevant". In that case, the Supreme Court held that a parent is entitled to a rebuttable presumption that access to his or her child's medical information is in the best interests of the child. In reaching its judgment, the Supreme Court had regard to the Constitution and observed that the "relationship between parent and child has special status in Ireland". The Court noted that the family unit has rights, but so does each member of the unit. The Court stated:
"A parent's rights and duties include the care of a child who is ill. As a consequence a parent is entitled to information about the medical care a child is receiving so that he or she may make appropriate decisions for the child, as his or her guardian. The presumption is that a parent is entitled to access such information. That position is not absolute. The circumstances may be such that the presumption may be rebutted. But the primary position is that the presumption exists."
The Supreme Court further explained: "The presumption is that the release of such medical information would best serve the interests of the minor. However, evidence may be produced that it would not serve her interests, and, in considering the circumstances, her welfare is paramount."
While the records at issue in the McK case related to medical treatment, the Commissioner takes the view (as did the former Commissioner) that the judgment is likely to apply to any personal information of a minor that is relevant to his or her welfare. This view is supported by the following comments by McMahon J in HSE v. Information Commissioner [2009] 1 IR 700:
"The Supreme Court in N. McK. v. Information Commissioner [2006] IESC 2, [2006] 1 I.R. 260 held that there is a presumption, though rebuttable, that a parent is entitled to access information about the medical care their child is receiving and that the release of such information is in the interest of the child. While this case concerned a parent's right of access to the child's medical records, the Supreme Court did not place undue emphasis on the nature or content of the records in question and I adopt the court's reasoning as being applicable also to the records involved in this case which were concerned with allegations of physical abuse of the child."
Nevertheless, it is apparent from the Supreme Court's repeated references to medical information or medical care that, while the nature or content of the records in question may not be determinative, it is a relevant factor. Moreover, under the Constitution, both parents in a marital family are presumed to be acting in the best interests of their child. The McK case indicates that reluctance by one parent or guardian to agree to access is not, in and of itself, sufficient to rebut the presumption to which a parent is entitled. However, in McK, the mother of the child concerned was deceased and the father, who was the requester, had been granted supervised access to his children by order of the Circuit Court. The father's request arose from a visit with his daughter during which he learned that she had been admitted to a hospital for an unspecified viral infection. The circumstances of the McK case are therefore distinguishable from those presented in this case.
In this particular case, the records include a Case Recording Summary, dated 29 June 2011, part of which records the advice the Duty Social Worker received from her supervisor on how to progress the case. Part of this record contains specific references to the applicant. It also contains a reference to the applicant's son - who is now 17 years old and approaching his age of majority. It is clear that information of this nature must be treated with the caution to protect the privacy interests of the son. Accordingly, Mr O'Doherty, Investigator, sought the applicant's consent to approach his son for his views on the matter in the context of considering the question of release, or otherwise, of part of this record. In response, the applicant indicated that his son does not want to revisit the issue, and that he, the applicant, accepts this. Accordingly, the applicant's consent to approach his son in relation to the record was not forthcoming. While I have given serious and considerable thought to the applicant's position, I am equally conscious that the son's views, his age and his wish not to revisit the matter, are very relevant in this case.
To that extent, I take the view that the applicant has already acquired a sufficient knowledge of the information regarding his son to enable him to exercise his parental role in making "appropriate decisions for the child". Provision of additional records to him, in the form of copies of records released under the FOI Act, would not in my view enhance the applicant's capacity to make "appropriate decisions for the child". It is very relevant also that the applicant is aware of the nature of the anonymous allegations which were made against his son and has been provided with copies of records in relation to the original allegation. On the other hand, the provision of copies of those records to the applicant carries some potential to impact negatively on the best interests of the son, particularly having regard to his age and his desire not to revisit the issue.
In the light of this, and having considered the matter carefully, particularly in the light of the son's wishes, the 2009 Regulations, the Guidance Notes published by the Minister and the views expressed by the Supreme Court, and having regard to the fact that the welfare of the child is paramount, I find, in the circumstances of this particular case, that release of the records, or parts thereof, would not be in the best interest of the son and that section 28(6) does not apply in this specific instance.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the HSE in this case.
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.
Elizabeth Dolan
Senior Investigator