Decision
Ms X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-127282-F3X7Y4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-127282-F3X7Y4
Published on
Whether the HSE was justified in refusing access, under section 37(1) of the FOI Act, to information relating to the applicant held in record(s) relating to her mother
30 November 2022
In a request dated 21 September 2021, the applicant, referencing a letter she said was written by a named third party in August 2021 regarding her mother, sought access to any information relating to her. In a decision dated 17 January 2022, the HSE refused the request under sections 35 and 37 of the FOI Act. It provided a schedule of records which contained details of four pages, described as public health nursing records for the applicant’s mother.
The applicant sought an internal review of the HSE’s decision, following which the HSE affirmed its decision. On 11 August 2022, the applicant applied to this Office for a review of the HSE’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 comments made by the applicant in her application for review, and to the submissions made by the HSE to this Office. I have also had regard to the correspondence between the applicant and the HSE as outlined above, and to the contents of the record(s) at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the HSE was justified in refusing access, under section 37(1) of the FOI Act, to certain records it identified as falling within the scope of the applicant’s request.
Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, it is important to note that while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent the disclosure of information contained in an exempt record during the course of a review. For this reason, the description I can give of the record(s) and issue and of the reasons for my decision is somewhat limited.
Secondly, while I can appreciate how important it is to the applicant to obtain access to the information sought, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.
Finally, I would also draw attention to section 18(1) of the Act, which provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I take the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 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, I am not in favour of the cutting or "dissecting" of records to such an extent.
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 personal information. The section does not apply where the information involved relates to the requester (subsection (2)(a) refers). However, section 37(7) provides that, notwithstanding subsection (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). In essence, this means that while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, if that personal information is inextricably linked to personal information relating to parties other than the applicant, then section 37(1) applies.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including, among other things, (i) information relating to the educational, medical, psychiatric or psychological history of the individual, (iii) information relating to the employment or employment history of the individual.
Having examined the record(s), I am satisfied that it comprises either personal information relating to individuals other than the applicant, or personal information of the applicant that is so closely intertwined with the personal information of other parties that it is not feasible to separate the two. Accordingly, I am satisfied that the release of the record(s) would involve the disclosure of personal information relating to individuals other than the applicant and that section 37(1) applies to this information.
There are some circumstances, provided for at section 37(2), in which the exemptions at section 37(1) do not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) the information contained in the record(s) 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 that section 37(2) does not apply.
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 in this case would not be to the benefit of the individuals to whom the information relates and 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. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & 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.
In relation to the issue of the public interest, it is also important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26. It is noted that a true public interest should be distinguished from a private interest.
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.
As noted above, I am required to disregard the applicant’s reasons for making the FOI request. Therefore, I can only take into account the purpose for which she seeks this information insofar as it can be construed as a public interest. It is the applicant’s position that false accusations have been made against her to the HSE by both her sister-in-law and her brother, and that without access to the information relating to her contained in the record, she is unable to respond to any accusations contained therein. She said that she should be permitted to view the information relating to herself and respond to it in order to protect her reputation. I note that she also requested that her letter be attached to any letter held by the HSE from her sister-in-law in order to provide a fully rounded picture of the situation.
I am conscious that the release of records under FOI is, in effect, regarded as release to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put. While I can appreciate why the applicant wishes to have access to the record, I am bound to treat her interest in seeking access to this information as a private rather than a public interest.
Having carefully considered the matter, given the strong public interest in protecting the right to privacy, I find no relevant public interest in granting access to the withheld information that, on balance, outweighs the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.
In conclusion, therefore, I find that the HSE was justified in refusing access, under section 37(1) of the FOI Act, to the record(s) at issue. Having found section 37(1) to apply, I do not need to consider the applicability of section 35 in this case.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision to refuse access, under section 37(1) of the FOI Act, to information relating to the applicant held in record(s) relating to her mother.
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