Decision
Ms. X & The Health Service Executive (the HSE)
From Office of the Information Commissioner (OIC)
Case number: OIC-159864-Q5Z6X0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-159864-Q5Z6X0
Published on
Whether the HSE was justified in withholding third-party personal information contained on the applicant’s personnel file under section 37(1) of the FOI Act
17 October 2025
In a request dated 18 November 2024, the applicant sought access to her personnel file. On 2 April 2025, the HSE part-granted the request and released over 600 pages of records. The HSE redacted certain information from five pages (pages 3, 4, 59, 63 and 64) under section 37 of the FOI Act as it contained personal information of individuals other than the applicant. On 10 April 2025, the applicant sought an internal review of the HSE’s decision as she wished to view all of the information contained in her personnel file. The HSE subsequently affirmed its original decision.
On 17 June 2025, the applicant applied to this Office for a review of the HSE’s decision. In her application for review, the applicant said she was of the view that she had a right to access the information as it is in her personnel file, and she wished to rectify any incorrect information that might be present. She said that if there is some negative information about her, she is entitled to view same.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence outlined above and to the submissions made to this Office. I have also had regard to the content of the records at issue. In referring to the records in this case, I have adopted the numbering system used by the HSE in the records it released to the applicant with its decision. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the HSE was justified in redacting certain information from pages 3, 4, 59, 63 and 64 of the records at issue under section 37 of the FOI Act.
While I am required by section 22(10) of the FOI Act to give reasons for my decision, section 25(3) provides that the Commissioner must take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be an exempt record. Accordingly, the details I can provide of the information redacted in this case are somewhat limited, as are the reasons I can give for my decision.
While the records at issue in this case may be held on the applicant’s personnel file, certain information contained in those records relates to other staff members. Records 3 and 4 contain a table consisting of details about a number of individuals, including the applicant, who attended an interview. The applicant’s interview details were released to her and details of other candidates was redacted from the records provided to the applicant. While Record 59 contains details about the applicant it also contains personal information about another staff member. Similarly, the information redacted on pages 63 and 64 relates to that other staff member. None of the redacted information is about the applicant.
Section 37(1)
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (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 an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the foregoing definition, constitute personal information, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual, (iii) information relating to the employment or employment history of the individual, and (v) information relating to the individual in a record falling within section 11(6)(a) (a personnel record of a member of staff of an FOI body).
Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I of section 2 refers). The exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms, conditions and functions of positions. This exclusion does not deprive public servants of the right to privacy generally.
I have carefully examined the information redacted by the HSE under section 37 of the FOI Act. While the information is included in records which relate to the applicant, the information itself relates to other individuals. I am satisfied that the disclosure of the information would involve the disclosure of personal information of other individuals. I find, therefore, that section 37(1) applies to the information withheld by the HSE in the five records outlined above. However, this is not the end of the matter as section 37(1) is subject to the other provisions of section 37, which I will examine below.
Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. These are:
(a) the information concerned relates to the requester concerned,
(b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester,
(c) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
(d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or
(e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual.
I am satisfied that none of those circumstances arise in this case.
Section 37(5)
Section 37(5) provides that access to the personal information of a third-party may be granted where, on balance, (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 information would be to the benefit of the person to whom the information relates. No evidence has been presented to this Office to suggest that the release of the information withheld would be to the benefit of the third party concerned, nor do I consider this to be the case in the context of the records at issue. I therefore find that section 37(5)(b) does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, the release of records under the FOI Act must be regarded, in effect, as release to the world at large given that the Act places no constraints on the uses to which a record released under the FOI Act can be put. With certain limited exceptions provided for under the Act, FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party/third parties concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case ”). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
As noted above, the applicant’s position is, in essence, that she should be able to access all information contained in her personnel file as it is her personnel file, and that any information concerning her should be released to her in order to allow her to correct any incorrect information about her. As I have outlined above, the information redacted by the HSE concerns individuals other than the applicant.
In its submissions to this Office, the HSE noted that the only information which has been withheld is the name of other staff members and some limited information regarding an interview schedule. The HSE said that it had considered the public interest issues that arise in this case both in favour of and against release. It said that it considered the following factors in favour of release: the public interest in knowing how a public body performs its functions, in members of the public knowing that information held by public bodies about them/those they represent is accurate, in members of the public exercising their rights under the FOI Act, and in the public knowing how a public body makes a decision. It said that it considered the following factors in favour of withholding the information at issue: the public interest in protecting the right to privacy of members of the public, in members of the public being able to communicate in confidence with public bodies and without fear of disclosure in relation to personal or sensitive matters, in public bodies being able to perform their functions effectively, and in safeguarding the flow of information to public bodies. The HSE said it is of the view that the public interest in favour of release does not outweigh the public interest in the right to privacy.
The FOI Act recognises a public interest in ensuring the openness, transparency, and accountability of public bodies in how they perform their functions. While the applicant’s interest in the redacted information at issue appears to ultimately be a private interest, I accept that there is a public interest in a staff member being able to access their personal information on their personnel file.
On the other hand, 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 FOI 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 question I must consider is whether the public interest in releasing the information withheld by the HSE outweighs, on balance, the public interest in protecting the privacy rights of the third parties concerned. Having regard to the content of the redacted information at issue and to the significant protection afforded to privacy rights, as well as the fact that the release of the information must be regarded effectively as release to the world at large, I am satisfied that it does not. In particular, I am not satisfied that any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information at issue exists in this case. I find, therefore, that section 37(5)(a) does not apply.
In conclusion, I find that the HSE was justified in its decision to refuse access to the redacted information contained in pages 3, 4, 59 63 and 64 of the records under section 37(1) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision to refuse access to the information it withheld in the records at issue under section 37(1) of the FOI Act.
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.
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Richard Crowley
Investigator