Decision
Mr Ken Foxe, Right to Know CLG & The The Childrens Hospital Group
From Office of the Information Commissioner (OIC)
Case number: OIC-161841-X2J0T9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-161841-X2J0T9
Published on
Whether CHI was justified in withholding certain figures comprising the number(s) of dismissals, suspensions, bullying complaints, and harassment complaints for given years together with figures breaking down the reasons and/or outcome of same pursuant to sections 30 and/or 37 of the Act
29 June 2026
CHI governs and operates acute paediatric services for the greater Dublin area and all national and specialised acute paediatric services.
In a request dated 2 June 2025, the applicant sought the following:
“a database/spreadsheet/list for 2022, 2023, 2024, and thus far in 2025 containing: number of employees sacked and reason for dismissal of each; number of employees suspended and reason for suspension; number of complaints of bullying received and the outcome, number of complaints of sexual harassment received and the outcome, number of complaints of harassment received and the outcome.”
In a decision dated 1 July 2025, CHI part-granted the request, providing tables of information for each year with certain information withheld pursuant to section 37(1) of the Act. On 8 July 2025, the applicant sought an internal review of CHI’s decision, following which CHI affirmed its decision to withhold certain information. While it still maintained that certain parts of the record concerned were exempt from release under section 37(1) of the Act, it was also relied on section 30(1) to withhold the information in question. On 26 August 2025, the applicant applied to this Office for a review of CHI’s decision.
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 applicant’s comments in his application for review and to the submissions made by CHI in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether CHI was justified in withholding, under sections 37(1) and/or 30(1) of the FOI Act, certain details of the number(s) of dismissals, suspensions, bullying complaints, and harassment complaints for given years together with figures breaking down the reasons and/or outcome of same.
In his application to this Office, the applicant observed that the original decision maker and internal review decision maker appeared to be the same individual. In the course of the review, CHI clarified that while the same individual signed both decisions, the internal review decision was made by a different, more senior individual to the original decision maker. While I accept CHI’s explanation, I wish to remind it that it is a statutory requirement that a separate, more senior member of staff to the original decision maker must conduct the internal review. The fact that this occurred should be obvious on the face of the internal review decision and I urge CHI to bear this in mind for future decisions.
The Information at Issue
The information withheld comprises the following:
• The number of dismissals in 2023 and 2025 together with the numbers broken down by certain specified reasons for dismissal
• The number of suspensions for 2024 and 2025.
• The number of bullying complaints for 2023, 2024, and 2025 together with the numbers broken down by certain specified outcomes
• The number of harassment complaints in 2025
Section 37(1) of the Act 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. The Act goes on to identify 14 categories of information that comprise personal information, including (iii) information relating to the employment or employment history of the individual.
Certain information is excluded from the definition. Paragraph I of section 2 provides that where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include the name of the individual or information relating to the position or its functions or the terms upon and subject to which the individual occupies or occupied 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 the functions of the position held. Similar information relating to service providers is also excluded, pursuant to Paragraph II.
The exclusions are intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant or a service provider in the context of the particular position held or service provided, or any records created by the staff member or service provider while carrying out his or her official functions, or information relating to the terms, conditions and functions of positions or services providers. They do not, however deprive public servants or service providers of the right to privacy generally.
It is important to note that for section 37(1) to apply, the release of the information must involve the disclosure of personal information about an identifiable individual. It is not necessary for an individual to be named in a record for the information to comprise personal information. It is sufficient that the individual is identifiable from the information released.
The applicant said the information sought comprises statistical information which, in his view, could not be used to identify any individual. In its submissions to this Office, CHI said the withheld information is inherently sensitive, relating to disciplinary findings, allegations and employment-related matters concerning staff and therefore, attracts a high level of protection under section 37. It said that while the request seeks aggregated data, the individuals concerned would be identifiable, including by indirect means. It submitted that when combined with the requested data, the following give rise to a realistic possibility of identification of the individual(s) concerned:
i. Low numbers and granularity – CHI said that the dataset involves very small numbers ranging from 1 to 5 instances. It said lower numbers increases the risk that individuals may be identifiable.
ii. Matters already in the public domain – CHI said it is aware of a number of disciplinary matters of the type captured by the request that have been the subject of media reporting or are otherwise known within the public domain. It said that release of the precise figures could allow such matters to be confirmed, narrowed down, or linked to identifiable individuals.
iii. Local and sectoral knowledge – CHI said that within the organisation staff cohorts are identifiable and incidents may already be known within teams or professional networks.
Having regard to the nature of the information at issue, I am satisfied that its release would involve the disclosure of personal information, if the individuals concerned are identifiable. I also accept CHI’s evidence that the release of the information at issue would involve the disclosure of personal information relating to identifiable individuals. I accept that the figures involved are quite low, thus increasing the likelihood of the individuals being identified. I also accept that the public availability of certain information, coupled with the local knowledge of colleagues of the individuals concerned, would also significantly increase the likelihood of the relevant individuals being identified. I am also satisfied that Paragraph I of section 2 does not apply in this case as the information sought does not relate to the matters set out therein. I find, therefore, that section 37(1) applies to the withheld information.
Section 37(2) provides that section 37(1) does not apply if;
(a) the information concerned relates to the requester concerned,
(b) the 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.
No specific argument has been made that any of the circumstances outlined above at subsections (a) to (e) are relevant in this case. I have considered whether subsection (c) applies in light of the nature of the information that is in the public domain in relation to individuals who comprise certain of the withheld figures. While the Courts have found that the fact that information is publicly available triggers the operation of section 37(2) to permit disclosure of that information, I am satisfied that the release of the records at issue would involve the disclosure of personal information of other individuals, the circumstances of whose complaints, dismissal, or suspension are not currently in the public domain. Having regard to the foregoing, I am satisfied that subsection (c) does not serve to disapply section 37(1) in respect of any of the records at issue.
Accordingly, I consider none of the provisions listed at (a) to (e) above apply to the records at issue.
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still 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. No argument has been made that section 37(5)(b) applies in this case, and I am satisfied that it does not apply.
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 v 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.
In its submissions to this Office, CHI said that it considered the public interest in transparency as to how it performs its functions. It said that such considerations would generally favour release of the records. To that end, it specifically identified the following areas where such an interest would exist:
• the management of staff
• the handling of complaints
• the operation of disciplinary processes in a publicly funded healthcare body. It said that this is an important consideration given CHI’s statutory role under the Children’s Health Act 2018.
CHI said that the following factors were considered which do not favour releasing the figures sought:
• The strong public interest in protecting privacy, particularly in relation to sensitive Human Resources matters.
• The real risk of identifying individuals, with potential reputational and professional consequences.
• Limited additional transparency benefit, as CHI has released information where numbers are sufficiently large.
• The Need to preserve confidence in Human Resources processes, particularly where complaints and disciplinary matters are concerned.
I accept that there is a public interest in openness and transparency concerning how CHI carries out its functions in handling complaints and addressing disciplinary matters. However, as I have outlined above, in the Enet case the Supreme Court made it clear 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”.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
I note that in this case, CHI has released a limited amount of the information sought on the basis that it considers that no personal information is being disclosed. It seems to me that in doing so, it has sought to enhance its transparency around the matters that are the subject of the request whilst seeking to ensure that privacy rights are not breached. Having regard to the strong protection afforded to privacy rights, to the sensitivity of the information at issue, and to the fact that the release of information under the FOI Act is, in essence, release to the world at large, I am not satisfied that there is any cogent and fact-based reason that would serve to tip the balance in favour of disclosure of the remaining information in this case. I find therefore, that that the public interest in releasing the information does not outweigh, on balance, the privacy rights of the individuals concerned.
In conclusion, therefore, I find that CHI was justified in withholding the information at issue under section 37(1) of the Act. Having found section 37(1) to apply, I do not need to consider the applicability of section 30(1) in this case.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm CHI’s decision to withholding certain information on the basis that it is exempt from release under section 37(1) of the 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.
Stephen Rafferty
Senior Investigator