Decision
Mr. X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-143105-T9H8T4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-143105-T9H8T4
Published on
Whether the HSE was justified in refusing access to records relating to correspondence between it and a named solicitor firm on the grounds that the records contain personal information
22 May 2024
In a request dated 19 September 2023, the applicant sought access to the following:
(i) all information in any format from 1 April 2023 to the date of his request relating to communication between the HSE and a named solicitor firm regarding a specific consent form; and
(ii) all correspondence between the HSE and the solicitor firm regarding the applicant from 13 October 2022 to the date of his request.
In a decision dated 19 September 2023 a total of 19 pages of records were identified as falling with the scope of the applicant’s requests and access to all pages were refused on the basis of section 31(1)(a) relating to legal professional privilege. On 25 September 2023 the applicant appealed this decision and on 13 October 2023 the internal reviewer affirmed the original decision. On 5 November 2023, the applicant appealed the matter to this Office.
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 the HSE in support of its decision. 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.
In the course of the review by this Office, the HSE indicated that, in addition to section 31(1)(a), it was also seeking to rely on section 37(1); relating to personal information, with respect to all records identified.
This review is therefore concerned solely with whether the HSE was justified in refusing access to information contained in the records under sections 31(1)(a) and 37(1) of the FOI Act.
As set out above, the HSE is now seeking to reply on sections 31(1)(a) and 37(1) with respect to all records in this case.
As I consider section 37(1) to be most relevant, I propose to consider that provision first.
Section 37 – personal information
Section 37(1) 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. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned 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 (commonly known as joint personal information).
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 details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including (iii) information relating to the employment or employment history of the individual, and (xiv) the views or opinions of another person about the individual.
Certain information is excluded from the definition of personal information, as set out in section 2 of the FOI Act. Paragraph (I) provides that where the individual is or was a staff member of an FOI body, the definition does not include the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or 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 those functions.
In its submissions to this Office, the HSE said the records at issue consist of correspondence between it and a professional legal adviser relating to a complaint made by the applicant to Coru relating to a named staff member. It said that Coru is an independent regulatory body and the HSE engaged with Coru’s legal adviser to provide information following a production summons issued under the Health & Social Care Professionals (Amended) Act 2005. The HSE said that the release of the records at issue would involve the disclosure of personal information relating to a staff member against whom a complaint has been made to their professional body.
As the HSE had not previously relied in section 37(1) with respect to the records in this case, I informed the applicant that I had formed the preliminary view that section 37(1) applied to the information at issue and provided the applicant with an opportunity to comment. In response, the applicant made reference to a number of external matters relating to aspects of other cases under review in this Office. The applicant, however, did not specifically address the applicability of section 37(1) to the records at issue. The applicant did, however, state that it was his view that the public interest favoured the release of the records as it would bring greater transparency to the HSE’s interaction with Coru. The applicant said that while the privacy rights of the individual in question are important, he considers that this must be balanced against the public interest in bringing greater transparency to what he termed ‘administrative backchannels’ between the HSE and a regulatory body.
As noted above, paragraph (I) excludes certain information relating to staff members of public bodies from the definition of personal information i.e. the name of the individual, and the office that he or she holds, the functions of that office, the terms on which it is held, and anything recorded by the individual for the purposes of the performance of his or her functions. Having carefully considered the matter, I am satisfied the information at issue relates to a complaint in relation to a named staff member and as such this information does not concern a function of the applicant’s employment; rather, I find that it relates to allegations against the staff member in the context of performing their functions. I find that paragraph (I) does not apply and that the information at issue is personal information.
There are a number of references to the applicant throughout the records. However, the net effect of section 37(7) as set out above, is that, where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information relating to another party or parties, and where it is not feasible to separate the personal information relating to the requester from that relating to the other party or parties, it can be described as joint personal information and section 37(7) must be considered. Having carefully considered the matter, I take the view that it is not practicable to separate the personal information relating to the applicant from that relating to the relevant third party individuals. As such, I consider that such information is joint personal information for the purposes of section 37(7) of the FOI Act.
As section 37(1) of the Act is subject to the other provisions of the section, I must proceed to consider whether any of those other provisions serve to disapply section 37(1) in respect of any or all of the above information.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. 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 information would be to the benefit of the person to whom the information relates. I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.
In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.
In its submission to this Office, the HSE said that while it accepts that there is a public interest in ensuring openness and transparency in the manner in which it delivers its service, there remains a strong public interest in protecting the privacy rights of individuals. It said the current case relates to a staff member who is subject to a fitness to practice complaint of an inherently private nature with potentially catastrophic outcomes for the individual concerned. In such circumstances, the HSE said the public interest does not favour release. The HSE also said that as the applicant is the complainant in the matter before Coru, it is likely that he is already aware of much of the information contained in the records at issue.
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, it is important to note that 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 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.
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.
In this case, the applicant referred to a public interest in bringing greater transparency to the HSE’s engagement with a regulatory body.
On the other hand, 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. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in 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 privacy.
The records at issue relate to a complaint made by the applicant to the relevant regulatory body in relation a named staff member. I have considered the argument of the applicant above and on the whole take the view that, while he is seeking the release of the records in pursuance of what I believe to be largely a private interest, nonetheless he has identified a valid public interest in ensuring that the HSE’s engagement with a regulatory body is appropriate. Having said that, having reviewed the records at issue, it seems to me that the release of the records at issue in this case would provide quite limited information on such engagement.
On the other hand, the records at issue; relating as they do to a complaint to a regulatory body concerning a HSE member of staff, are of an inherently private and sensitive nature and I must regard their release as being effectively, or at least potentially, to the world at large. Having considered the matter, and bearing in mind the strong public interest in protecting the right to privacy, I do not accept that the public interest in releasing the records outweighs, on balance, the privacy rights of the relevant third parties. 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.
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 records at issue on the basis of section 37(1).
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.
Mary Connery, Investigator