Decision
Mr X and St. John of God Services
From Office of the Information Commissioner (OIC)
Case number: OIC-156401-D9T5H6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-156401-D9T5H6
Published on
Whether SJOG was justified, under section 37(1) of the FOI Act, in refusing third-party personal information contained in the records sought by the applicant, and whether it was justified under section 17(2)(b)(ii) of the Act in refusing to provide a copy of records protected by copyright
6 June 2025
In a request dated 7 October 2024, the applicant sought access to records of the services he received as a child at SJOG. In a decision dated 18 December 2024, SJOG part-granted the applicant’s request, refusing certain information under sections 37(1), 35(1)(a) and 17(2)(b)(ii) of the FOI Act. On 15 January 2025, the applicant sought an internal review of SJOG’s decision. On 29 January 2025, SJOG affirmed its original decision.
On 10 February 2025, the applicant applied to this Office for a review of SJOG’s decision. The applicant disputes the amount of information that has been redacted and said that the third parties, particularly family members, to whom the redacted information may relate have not been identified. He also said that SJOG provided no explanation why his assessments/diagnoses are subject to copyright (under section 17(2)(b)(ii) of the Act).
During the course of this review, SJOG said it would be willing to allow the applicant or a nominated medical practitioner to view the copyright records in person. The applicant has not explicitly said he is willing to accept this form of access as of yet. It is important to note that this Office has no role in facilitating this offer to view the records in question. If the applicant wishes to avail of this offer to view the records, he should contact SJOG directly.
This Office’s Investigating Officer provided the applicant with details of the submissions made by SJOG outlining its reasons for refusing certain information contained in the records in question and invited the applicant to make submissions of his own, which he duly did.
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 by SJOG and the applicant during the course of this review. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned with whether SJOG was justified in its decision to refuse access information contained in the records at issue under sections 17(2)(b)(ii), 35(1)(a) and 37(1) of the FOI Act.
Before I address the substantive issues arising, I would like to make a number of preliminary comments. Firstly, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the record at issue, and its content, is limited.
Secondly, 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. This Office takes the view that the provisions of section 18 do not 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. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Thirdly, it is also important to note when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the use to which released records may be put.
Finally, SJOG refused pages 28-31 and page 41 of the records in full as they relate entirely to someone other than the applicant. Having examined these pages, I am satisfied they do not relate to the applicant and are therefore outside the scope of his request for records relating to the services he received as a child. Accordingly, I do not intend to consider these records any further.
Section 37(1) of the FOI Act is a mandatory exemption and provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily 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 of the Act details fourteen specific categories of information that 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, (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual, and (xiv) the views or opinions of another person about the individual.
The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester. Under section 37(1), personal information cannot be released unless one of the other relevant provisions of section 37 applies. Section 37(7) provides that access to a record shall be refused where it would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester. This is generally referred to as “joint personal information”.
The applicant said that he believes he is aware of who the third party in the records refers to, and so he said that there should be a way to disaggregate the records so that only his personal information is released to him. He stated that the third-party information being in his medical records may be a bureaucratic error.
In regard to the applicant’s submissions about disaggregating the information so that only information pertaining to him remains, having examined the records I am satisfied that SJOG has done this to the greatest extent possible while still protecting third party personal information contained in the records. While I am constrained by the requirements of section 25(3) in the description I can give of the information SJOG refused, I can say that in its submissions to this Office SJOG said that the records at issue were created in the 1980s. It said that at this time, where a number of children from one family attended the service, documents were often stored together as one medical record. SJOG said that a large portion of the information it redacted under section 37 of the Act relates to information concerning other members of the applicant’s family. SJOG said it does not have their consent to release this information. In addition to information about family members, SJOG also redacted a small amount of other information including the signatures of doctors and teachers and the address of a third party.
Having examined the information redacted by SJOG from the records at issue, I am satisfied that it can properly be described as personal information, and that section 37(1) applies. Furthermore, while SJOG refused information contained on pages 11, 46, 47 and 48 under section 35(1)(a) of the Act, I am satisfied that this information can also be described as personal information of third parties or joint personal information of the applicant and other parties. I find that section 37(1) applies to the information redacted by SJOG, apart from the copyright records which I will consider below. However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section, specifically subsections (2) and (5). Accordingly, I must proceed to consider whether any of those other provisions serve to disapply section 37(1) in respect of the information redacted by SJOG.
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply to the information which I have found to be exempt under section 37(1). That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third-parties have not consented to the release of their information; (c) the information is not of a kind that is available to the general public; (d) the information at issue 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 find, therefore, that section 37(2) does not serve to disapply section 37(1) in this case.
Section 37(5) of the FOI Act 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 request would benefit the person to whom the information relates.
I have no reason to believe that the release of the information sought would benefit the individuals to whom the information relates. I am therefore satisfied that section 37(5)(b) does not apply. In relation to the applicability of section 37(5)(a), in carrying out any review this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to 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.
On the other hand, 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 an unenumerated personal right 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.
It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner and Ors. [2020] IESC 57 (‘the eNet 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.
SJOG said it considered the public interest factors for and against release of the information, including the right of an individual to access their medical records and the need for transparency and accountability. It stated that releasing information provides an insight into how public bodies perform their function and provides transparency and accountability to the public. It said that, in considering factors against release, SJOG requires access to a range of information in order to perform its service as a mental health service provider. It stated that this information often relates to individuals other than the record owner (such as family members, friends, employers and other third parties). It stated that SJOG relies on this information as part of the provision of services, and releasing this information may prevent individuals from sharing this information with SJOG in the future. It stated that the information concerned does not relate to the applicant and it does not have consent from the third parties involved to release their information. It stated that third parties have a right to privacy. SJOG stated that as such, the public interest factors against release, outweigh the factors for release.
It is important to note that the release of information 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 Act can be put. 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 individuals concerned. Having regard to the strong protection afforded to privacy rights under the Act, I am not satisfied that there is any sufficiently specific, cogent and fact-based reason for finding that the public interest in granting the applicant access to the information redacted by SJOG outweighs the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply. Having found that section 37(1) also applies to the information contained in pages 11, 46, 47 and 48, that SJOG refused under section 35(1)(a), it is not necessary for me to consider whether this information is also exempt under section 35(1)(a) of the Act.
In conclusion, therefore, I find that SJGO was justified in withholding, under section 37(1) of the FOI Act, the information it redacted from the records at issue, apart from the copyright records which I will now consider.
SJOG refused a copy of a Wechsler Intelligence Scale for Children – Revised (WISC-R) assessment which the applicant had undertaken as a child under section 17(2)(b)(ii) of the FOI Act. The purpose of section 17(2)(b)(ii) of the Act is to protect access to records where releasing a copy the record would involve an infringement of copyright.
SJOG said that the WISC-R is an assessment owned by the Psychological Corporation. SJOG said that it does not have copying or distributing rights for this assessment. Is also said that these assessments can only be interpreted by a medical professional. SJOG said that, where possible, it tried to provide the applicant with as much information as possible including notes on the side and bottom of assessment pages.
In his submissions, the applicant stated that, to his knowledge, the Psychological Corporation does not exercise copyright control over the requested records as he said he received information of a similar nature before. When asked about this, SJOG said it was not in a position to comment on similar records the applicant said he was able to access. It said that its approach is to withhold such assessments which have been marked as copyright protected, and so this is why it applied section 17(2)(b)(ii) of the Act. SJOG reiterated that it would be happy to arrange access to the copyright records in person with the applicant or a nominated medical practitioner. If the applicant wishes to do so, I suggest he contact SJOG directly about its offer to view the record.
It is my understanding that the type of material at issue normally has copyright status, and it seems to me that, on its face, the record itself indicates that the tests are copyrighted by a party other than SJOG. Having considered the matter and in circumstances where the record clearly indicates that it is copyright protected, I consider SJOG’s offer to view the record to be an appropriate form of access to the applicant’s WISC-R assessment. Accordingly, I find that SJOG was justified in refusing to provide a copy of the record to the applicant.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm SJOG’s decision. I find that SJOG was justified in refusing access to the personal information of third parties under section 37(1) of the Act. I also affirm SJOG decision concerning access to the copyright records at issue. It is open to the applicant to contact SJOG to avail of its offer to view his WISC-R assessment.
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.
Richard Crowley
Investigator