Decision
Mr X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-157318-V4S0H2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-157318-V4S0H2
Published on
Whether the HSE was justified in refusing access to personal information contained in the home care support files of the applicant’s deceased father under section 37(1) of the FOI Act and whether it was justified in confining the scope of the applicant’s request to records from 2022
11 November 2025
In a request dated 11 April 2024, the applicant made a request to the HSE Home Support Office for all information relating to his late father. He said that the Home Support Office assisted his late father with home care support in 2022 with direct or agency staff and asked for all information held on file for his father.
On 10 May 2024, the HSE released a copy of its Home Support file (File A) with a small number of redactions on page nine of the file that relate to other individuals in receipt of care. On 16 May 2024, the applicant wrote to the HSE outlining information that was missing from the records he received, including the names of the carers who cared for his father and information about his father’s care plan completed by care staff during their visits. On 2 July 2024, having received no reply to a number of emails he sent to the HSE, the applicant applied for an internal review of the HSE’s decision.
On 3 February 2025, the applicant applied to this Office for a review of the HSE’s non-reply to his internal review request. On 4 March 2025, at the request of this Office, the HSE responded to the applicant’s internal review request. The HSE noted that File A, which contains its home support office records, was released to the applicant in its original decision. The HSE said that it had retrieved a copy of a file (File B) from the agency which delivered home care to the applicant’s late father. The HSE said it decided to refuse access to File B, under section 37(1) of the FOI Act, on the ground that the file contains personal information of staff of the agency who provided the care on behalf of the HSE. On 11 March 2025, the applicant applied to this Office for a review of the HSE’s decision.
During the course of this review, the HSE decided to vary its decision by part-releasing File B to the applicant, with some redactions of what it deemed to be third-party personal information under section 37(1). The HSE also redacted some information which it said was outside the scope of the request because it referred to content recorded prior to 2022. After receiving the records, the applicant informed this Office that he was of the belief that that File B should be released to him in full. He said he did not specify any date limitations in his original request when he asked for all documentation relating to his late father's care.
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 the HSE and the applicant. 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.
Firstly, for the sake of clarity, I wish to note that the information redacted by the HSE from File A concerns the care of individuals other than the applicant’s father. I am satisfied that the HSE was justified in redacting this information as it does not relate to the applicant’s father and is outside the scope of his request.
This review is concerned with whether the HSE was justified, under section 37(1) of the FOI Act, in refusing certain information from the file of the agency (File B) that provided care to the applicant’s father on the grounds that the redacted information is personal information of other parties and whether the HSE was justified in refusing access to any further records that may exist on the basis that it had limited the scope of the applicant’s request solely to records from 2022.
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 third-party personal information. ‘Personal information’ is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. Furthermore, the Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition including, at point (iii), information relating to the employment or employment history of the individual.
The HSE redacted the names of the staff of the agency contained in File B under section 37(1) of the FOI Act. It also redacted certain other information under section 37(1) as outlined below.
In its submissions to this Office, the HSE stated that it has a contract with the named agency which was used to provide home care to the applicant’s father through a service arrangement under the Home Support Authorisation Scheme. It said that the agency is contracted to provide services on behalf of the HSE and therefore would be considered to be a ‘service provider’ as per section 11(9) of the FOI Act.
Certain information is excluded from the definition of personal information. Paragraph II of the definition in Section 2 of the Act provides that where the individual is or was a service provider, the definition does not include the name of the individual or information relation to the service or terms of the contract or anything written or recorded in any form by the individual in the course of and for the purpose of the provision of a service. A similar exclusion for staff members of FOI bodies is found at Paragraph I. However, the exclusions to the definition do not exclude all information relating to staff members of FOI bodies or service providers. This Office takes the view that individual staff members are still generally entitled to the right to privacy.
I consider that the exclusion to the definition of personal information relating to service providers applies to the name of the service provider, but not to the names of its individual employees. Accordingly, I am also satisfied that the names of the agency staff contained in File B are their personal information within the meaning of the FOI Act and I find that section 37(1) of the Act applies to those names.
On certain pages of the records released to the applicant, the HSE also redacted the name of a third-party individual who is not the applicant, the applicant’s father nor agency or HSE staff. I am satisfied that this information is third-party personal information, and that section 37(1) of the Act also applies to the name of this individual.
Finally, I will deal with information relating to the applicant’s father that was redacted in File B. The HSE redacted the applicant’s father’s name and address on pages 6 and 14 of File B and also redacted his father’s name on pages 8 and 12. In the circumstances where the HSE accepts that the applicant is the next of kin and has already released similar information relating to the father in other records it provided to the applicant, I direct the HSE to re-release pages 6, 8, 12 and 14 of File B to include the applicant’s father’s information. For the sake of clarity, I find the remaining redacted information on those pages is exempt under section 37(1) for the reasons outlined above.
However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37.
Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. However, I am satisfied that the relevant circumstances do not arise in this case.
Section 37(5) provides that a request that would fall to be refused under subsection (1) may still be granted where, on balance, (a) 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, or (b) the grant of the request would benefit the person to whom the information relates. No argument has been made that the release of the redacted information to the applicant would benefit the other individuals, nor is it apparent to me how release would do so. I 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, 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.
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 individuals 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.
In this case, while the applicant did not identify any specific public interest factors in favour of the release of the records at issue that might outweigh, on balance, the privacy rights of the other individuals, he indicated in his correspondence with this Office that he wants the names of the staff that cared for his father. The applicant also pointed out that the names of both HSE and agency staff were not redacted in the records contained in File A that was released to him. He argued there was no justification for the redactions of their names in File B.
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).
Having considered the matter, it is not apparent to me how the release of the personal information at issue in this case, effectively, or at least potentially, to the world at large, would enhance transparency around the manner in which the HSE carries out it functions. In the circumstances, I do not accept that the public interest in releasing the information to which access has been refused outweighs, on balance, the privacy rights of the other individuals. I find, therefore, that section 37(5)(a) does not apply. Furthermore, while I note the applicant’s comments that the names of agency staff were released to him in File A, this does not provide a basis for me to direct the release of the agency staff names in File B in circumstances where I have found those names are exempt from release under section 37(1) of the Act.
In conclusion, I find that the HSE was justified in refusing access to the personal information of third parties contained in File B under section 37(1) of the FOI Act. However, I direct it to release the information relating the applicant’s father outlined above.
The applicant said that he did not specify date limitations in his original request for the records he requested in relation to his late father. He said he asked to receive all documentation relating to his late father’s care.
In its submissions to this Office the HSE said that the applicant’s request was interpreted as records from 2022, as he had specifically referenced the year 2022 in his original request.
While I acknowledge the applicant had referenced 2022 in his original request, it is clear that he requested all information on file for his father. In the circumstances, I am satisfied that the HSE took a narrow interpretation of the applicant’s request, and I direct the HSE to consider his request afresh in regard to any further relevant records dating either before or after 2022. The applicant will have the usual rights of review if he is unhappy with the HSE’s decision on access to records dating from outside of 2022.
In conclusion, I affirm the HSE’s decision to refuse access to personal information of third parities under section 37(1) of the Act. I direct the HSE to release information contained in records 6, 8, 12 and 14 that relates solely to the applicant’s father, and I direct the HSE to make a fresh decision on access to records from before or after 2022.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE’s decision. I find that it was justified in refusing the names of the agency staff and another third-party individual under section 37(1) of the Act. I annul the HSE’s decision to refuse details about the applicant’s father in records 6, 8, 12 and 14 and direct it to release that information. Finally, I direct the HSE to make a fresh decision on access to any relevant records that exist from before or after 2022.
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 by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Richard Crowley
Investigator