Decision
Mr Z and the Health Service Executive West (the HSE)
From Office of the Information Commissioner (OIC)
Case number: 120017
Published on
From Office of the Information Commissioner (OIC)
Case number: 120017
Published on
Whether the HSE has justified its refusal to fully release all records relevant to two parts of the applicant's request (which sought records concerning notifications by a named GP of changes in the days and hours of attendance in two specific Health Centres), and whether it has justified its refusal to confirm or deny the existence of records relevant to other aspects of that request
6 February 2014
On 10 October 2011, the applicant made an FOI request for:
The HSE's decision of 30 November 2011 released documentation relevant to parts 1 and 2 of the request, subject to the redaction of personal information and details concerning work carried out by the GP in a private capacity. It said that the decision on parts 7 and 8 of the request were "under the remit of the PCRS". It did not comment on the remaining aspects of the request.
The applicant sought an internal review of the HSE's decision on 14 December 2011. The HSE issued its internal review decision on 13 January 2012. It said that it had not located any further records relevant to parts 1 and 2 of the request; that records relevant to parts 7 and 8 were "not held locally" in which regard the applicant "should liaise with the Freedom of Information Department in the Primacy Care Reimbursement Service"; and that it was refusing to confirm or deny whether records existed in relation to the remainder of the request "under section 28(5A) of the FOI Acts".
On 24 January 2012, the applicant sought a review by this Office of the HSE's decision to withhold certain aspects of records relevant to parts 1. and 2. of the request, and its refusal to confirm or deny the existence of records relevant to parts 3., 4., 5., 6., and 9. of the request. (I note that on 26 January 2012, the HSE supplied the applicant with a spreadsheet issued by the Primary Care Reimbursement Service (the PCRS, which is also part of the HSE) in response to items 7. and 8. of his request).
In carrying out my review, I have had regard to correspondence between the HSE and the applicant as set out above; to details of various contacts between this Office and the HSE; and to details of various contacts between this Office and the applicant, particularly the preliminary views letter sent to him, dated 9 September 2013, by Ms Anne Lyons, Investigator in this Office. Although the applicant sought additional time to reply to this letter, further to which he was asked to reply by 24 October 2013, I note that no response has been received. Thus, I have decided to conclude the review by way of a formal binding decision. I have also had regard to the provisions of the FOI Act and, in considering the public interest at section 28(5)(a), 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(to which I will refer as "the judgment").
The scope of this review is confined to whether or not the HSE has justified its decision to withhold certain aspects of records considered by it as relevant to parts 1. and 2. of the request, and its refusal to confirm or deny the existence of records relevant to parts 3., 4., 5., 6., and 9. of the request.
As a starting point, it is useful to explain that, while the Commissioner and this Office are required by section 34(10) of the FOI Act to give reasons for decisions, section 43(3) also requires precautions to be taken so as not to disclose information in a record that is exempt from release under the FOI Act, or which is claimed to be so exempt.
The HSE's schedule of records listed 27 records as encompassed by parts 1. and 2. of the request, all of which it released in full bar records 1, 2, 5, 12, 18 and 24-27, which it partially released. The redactions from records 1, 2, 5, 12 and 26 clearly pertain to the provision of public services by the GP concerned. It is less clear if the remaining withheld details also pertain to such services, or to the GP's private practice, or to both.
While records concerning the provision of public services by a GP are subject to the provisions of the FOI Act, records concerning the provision by the same GP of private services are not. Thus, for instance, it is not possible to obtain records from the HSE of one's attendances with private medical practitioners, even if those practitioners also provide services via the public healthcare system. However, details about the GP's private practice are, in this case, combined with details about his public practice, all of which are contained in records that are held by the HSE and subject to FOI.
I consider that any details about the GP's private practice would disclose information about his employment, which is defined by section 2 of the FOI Act as "personal information". Section 28(1) provides that, subject to other provisions of section 28, a public body shall refuse a request for a record where granting it would involve the disclosure of personal information about an identifiable individual. I find such details to be exempt under section 28(1) of the FOI Act, accordingly.
However, section 2 of the FOI Act also provides that certain types of information about an individual who "is or was providing a service for a public body under a contract for services with the body" are excluded from the definition of "personal information". Section 2 provides that the definition does not include:
"(II) ... the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service,"
GPs provide services via the public health care system further to a contract with the HSE. Applying the above qualification to the circumstances of this case, it is clear that the following do not constitute personal information: the name of the GP in the context of providing a service under a contract for services with the HSE; information relating to the service, or the terms of the contract, concerned; and records created by that GP in the course, of and for the purpose of, the provision of the service concerned.
Having examined the details concerning the provision of public services by the GP concerned, I do not consider the details concerned to fall into any of the above exclusions from the definition of "personal information". I therefore find the details concerned to amount to the GP's personal information, and to be exempt under section 28(1) of the FOI Act. It follows that I should also find any details that relate to both his private and public practice to be similarly exempt. I find, therefore, that section 28(1) of the FOI Act applies to the details withheld from records 1, 2, 5, 12, 18 and 24-27.
I also understand that the HSE holds a further three records of relevance to these aspects of the request, the existence of which has not previously been disclosed to the applicant. It appears to be the HSE's position that disclosing the mere existence of the records concerned, in the context of the nature of the request, will, of itself, disclose personal information about the applicant. I do not accept that such an outcome will arise, and thus I do not consider the HSE to be justified in having refused to disclose the existence of the records concerned. However, having examined the contents of same, I consider them to be exempt from release under section 28(1) of the FOI Act, and that none of the exclusions to the definition of personal information apply in the circumstances of this case. I find accordingly.
There are some circumstances, provided for at section 28(2) of the FOI Act, in which the exemption at section 28(1) does not apply. Having examined the details to which I have found section 28(1) to apply, I am satisfied that none of the circumstances identified at section 28(2) arises in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the GP has not consented to the release of that information; (c) that the information is not of a kind that is available to the general public; (d) that 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) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. No argument to the contrary has been made by the applicant, and I find that section 28(2) does not apply to the details at issue here.
Section 28(5) provides that a record, which is otherwise exempt under section 28(1), may be released in certain limited circumstances.
The effect of section 28(5)(a) is that a record, which has been found to be exempt under section 28(1), may be released if it can be demonstrated that "on balance, 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". In the judgment referred to earlier, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates.
Following the approach of the Supreme Court, a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") must be distinguished from a private interest for the purpose of section 28(5)(a). The language of section 28 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 one of the un-enumerated personal rights under the Constitution). Accordingly, when considering section 28(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.
The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies as well as the public interest in ensuring that persons can exercise their rights under the Freedom of Information Act. However, I am not satisfied in the circumstances of this case that these public interests are sufficient to warrant the breach of the GP's right to privacy (section 43(3) precludes me from going into any detail as why I have formed this view). I find that the details to which I have found section 28(1) to apply should not be released further to section 28(5)(a) of the FOI Act.
Finally, it is necessary to consider whether section 28(5)(b) is of relevance. The effect of section 28(5)(b) is that a record, which has been found to be exempt under section 28(1), may still be released if it can be demonstrated that the grant of the request would benefit the third party whose information would be released. The applicant has not made any case that the release to him of the personal information of the GP would "benefit the individual" to whom it relates. Nor am I otherwise aware of any reason to think that such release would be to the benefit of the third party concerned. I find that no right of access arises further to the provisions of section 28(5)(b) of the FOI Act.
In summary, I find that the HSE has justified its refusal of the remainder of records 1, 2, 5, 12, 18 and 24-27, and its refusal (in full) of the three further records it considers relevant to parts 1 and 2 of the request.
Section 28(5A) provides that "[w]here a request under section 7 relates to a record to which subsection (1) applies but to which subsections (2) and (5) do not apply or would not, if the record existed, apply, and in the opinion of the head concerned the disclosure of the existence or non-existence of the record would have the effect specified in subsection (1), he or she shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists."
In considering this provision of the FOI Act, the following should be had regard to (as per the decision in case 080050, which is available on the Office website at www.oic.ie):
(i). Would the records requested, if they existed, constitute personal information and thus be exempt under section 28(1) of the FOI Act?;
(ii). Do any of the exceptions to section 28(1) apply?;
(iii). Would disclosure of the existence or non-existence of records amount to disclosure of personal information?
For the purposes of my decision, I have had to ascertain the actual position regarding the existence or non-existence of records sought by the applicant. However, consideration of the three requirements above must be conducted on the basis of what would be the case were the HSE to hold the records sought by the applicant, rather than on whether or not such records are actually held. Further to section 43(3), thus, in the analysis which follows, I must be careful not to disclose whether or not records of the type sought by the requester do, or do not, exist.
It is the applicant's contention that the GP has not complied with various requirements of the contract under which he provides public health services on behalf of the HSE. Thus, if they exist, any records of relevance to parts 3. to 6. of the request would enable determination of whether the named GP has complied with or breached the contract concerned. If records of relevance to part 9. existed, they would disclose whether the named GP has previously been subject to disciplinary or other processes.
If it were the case that the GP had breached his contract with the HSE, or had been subject to disciplinary or other processes in the course of that contract, I do not accept that any such mis-conduct could be characterised as being for the purpose of the provision of the service for the HSE under the contract concerned. Thus, I consider that mis-conduct (or no misconduct at all) on the part of a person who is or was providing a service for a public body under a contract for services with the body, amounts to that person's personal information. It follows that I would accept that any records relevant to parts 3. to 6, and 9. of the request, if they exist, would be exempt from release under section 28(1) of the FOI Act.
Turning to (ii). above, the exceptions to section 28(1) are provided for in sections 28(2) and 28(5) of the FOI Act, and are set out earlier in this decision. I consider none of the provisions of section 28(2) to have any relevance to the review at hand.
Again, section 43(3) precludes me from going into any detail regarding the balancing of the public interest considerations as required by section 28(5)(a). I am confined to saying that on balance, if the records sought existed, I would find that the public interest that would be served by their release would not outweigh the public interest in upholding the GP's right to privacy.
As for section 28(5)(b), no case has been made to demonstrate how release of any records that might exist would "benefit the individual" to whom they relate (i.e. the named GP), nor am I otherwise aware of any reason to think that this would be the case. I find that no right of access would arise to the records requested at parts 3. to 6. and 9. of the request, if they existed, further to the provisions of section 28(5)(b) of the FOI Act.
Finally, as regards the requirement at (iii)., I find that disclosing either the existence or non-existence of records of relevance to the request would disclose the named GP's personal information.
I consider the three requirements for section 28(5A) to apply to have been met in this case. Accordingly, I find that the HSE has justified its decision to rely on section 28(5A) as the basis for refusing parts 3. to 6. and 9. of the applicant's request, and as the basis for refusing to disclose to the applicant whether or not the records sought do, or do not, exist.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby vary the HSE's decision in this case, in so far as it did not disclose the existence of three additional records relevant to parts 1 and 2 of the request. However, I uphold its refusal of the records concerned. I also uphold its decision on those records already identified by it as relevant to parts 1 and 2 of the request, as well as its refusal to disclose to the applicant whether or not the records sought at the remaining parts of the request do, or do not, exist.
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.
Sean Garvey
Senior Investigator