Decision
Mr Y and Health Service Executive (FOI Act 2014)
From Office of the Information Commissioner (OIC)
Case number: OIC-53259-J7D5H6 (180496)
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-53259-J7D5H6 (180496)
Published on
Whether the HSE was justified in refusing to grant access, either in whole or in part, to certain records relating to the applicant under sections 30 and 37 of the FOI Act
4 July 2019
On 23 August 2018 the applicant submitted a request to the HSE for all personal information held relating to him, to include his personal and employment records. In particular he sought records held by five named individuals in various locations and all records held in the Human Resources Department in Merlin Park, Galway, relating to him.
It appears that the HSE separated the request into a number of parts but did not inform the applicant that it had done so. On 4 September 2018 it issued a decision in relation to records held in the Human Resources Department in Merlin Park. It identified 96 pages and 12 appendices as coming within the scope of the request. Access to a number of the pages was refused in full or in part under section 37(1).
On 14 September 2018 the applicant submitted a request for an internal review of that decision on the ground that he had not received all relevant records. He also indicated that he was yet again requesting a copy of all correspondence between his union representatives and HR.
Subsequently, on 10 October 2018, the HSE issued a decision on records held at Roscommon University Hospital in which it provided the applicant with an additional 72 pages, none of which were redacted or withheld.
The HSE issued an internal review decision on 17 October 2018 wherein the original decision in relation to records held in the Human Resources Department in Merlin Park was affirmed. On 25 November 2018 the applicant sought a review by this Office of the HSE’s decision.
In the course of forwarding the relevant decision making records to this Office, the HSE stated that a decision remained outstanding in respect of records held by Roscommon Primary Case Services.
For the purposes of the review, the HSE provided this Office with copies of the records held by the Human Resources Department in Galway and by Roscommon University Hospital on 9 January 2019. It also stated that relevant records were also held by both the Maintenance Department and the local HR Office of Roscommon Primary Care Services and by Sacred Heart Hospital Roscommon and Aras Naomh Chaolainn Roscommon. It stated, however, that a decision on those records remained outstanding.
On 6 February 2019 the HSE issued a decision to the applicant wherein it identified 58 pages of records held in Roscommon Maintenance Department, 24 pages of records held in the local HR Office, and 118 pages of records held by Sacred Heart Hospital & Áras Naomh Chaolainn.
It refused access to a number of records and redacted certain other records, citing sections 30 and 37 in support of its decision.
In light of the HSE’s decision to release additional records, this Office contacted the applicant outline the proposed scope of the review. In his response of 4 March 2019 the applicant indicated that he was not satisfied with the HSE’s decision to refuse access, either in whole or in part, to certain records it identified as coming within the scope of his request. He also referred to the fact that he had previously sought copies of correspondence between his union representatives and the HSE.
I have now completed my review of the HSE’s decision. In conducting the review I have had regard to the HSE's correspondence with the applicant as outlined above and to the communications between this Office and both the applicant and the HSE. I have also had regard to the contents of the records at issue.
I accept that records of correspondence between the applicant’s union representatives and the HSE relating to the applicant come within the scope of what was a broad request for all records relating to him. Nevertheless, I am aware that the applicant made a separate request to the HSE for those specific records and that the HSE’s decision on that request is the subject of a separate review by this Office. Accordingly, I have excluded those records from the scope of this review.
This review is concerned with whether the HSE was justified in refusing to grant access, either in whole or in part, to certain records held in the Human Resources Department in Merlin Park, the Maintenance Department of Roscommon Primary Care Services; the local Human Resources Office, Roscommon Primary Care Services; Sacred Heart Hospital, Roscommon; & Áras Naomh Chaolainn, Roscommon on the basis of sections 30 and 37 of the FOI Act.
A considerable amount of confusion arose as a result of the manner in which the HSE processed the applicant’s request. I accept that the request was quite broad and captured records held in a number of different locations. I also accept that for that reason, the HSE had cause to separate the request. However, it was not acceptable, in my view, for the HSE to fail to properly coordinate the various decisions and, more importantly, to inform the applicant in advance of the decisions he could expect from the various locations.
The question of the HSE assigning responsibility for the coordination of requests that it has decided to split for logistical reasons is a matter I intend to raise with the HSE in more detail in the near future.
The records at issue in this case comprise the personnel and employment records of the applicant over the course of his career with the HSE. As would be expected they comprise records relating to matters such as leave arrangements, remuneration, and the terms and conditions of the applicant's employment. A considerable portion of the relevant records relate to a disagreement, which has been ongoing since 2012, between the applicant and the HSE in relation to the exact working hours required in his specific role. In its submission to this Office the HSE have indicated that this matter has not yet been resolved and remains under consideration by HSE personnel.
The HSE has refused access to parts of the relevant records under section 37(1) which 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 definition also details fourteen specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including (iii) information relating to the employment or employment history of the individual, and (v) information relating to the individual falling within section 11(6)(a) (i.e. personnel records).
Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held 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 his or her functions (Paragraph I refers).
The exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally.
Having examined the records at issue, I am satisfied that the records to which access has been part-granted or refused contain either personal information relating solely to parties other than the applicant or personal information relating to the applicant that is inextricably linked with personal information relating to one or more third parties, i.e. joint personal information.
In particular a number of the records which have refused on the basis of section 37 relate to the ongoing dispute between the applicant and the HSE in relation to his working hours. In some cases these records contain references to allegations of misconduct against named employees and the allegations are denied by those involved. The names of these employees and details of the allegations have been redacted from the relevant records.
I am satisfied that the qualification on the definition of personal information contained in section 2 part (I) does not extend to allegations of misconduct as this cannot be said to be something done for the purpose of the performance of the employee's functions. I find that the HSE was justified in refusing access in full or in part to these records on the basis that the information withheld is exempt under sections 37(1) or 37(7) of the Act.
I find, therefore, that section 37(1) of the Act applies to the relevant records. Certain provisions of section 37 serve to disapply the exemption in subsection (1). Subsection (2) provides that subsection (1) does not apply in certain circumstances. Subsection (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.
Before I consider those provisions, however, I will consider Regulations made by the Minister for Public Expenditure and Reform under subsection (8). Subsection (8) entitles the Minister to make regulations that provide for the release of personal information of certain classes of individuals to the parents or guardians of those individuals.
The Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 provide for access by parents and guardians to records of minors and certain others. The Regulations, in accordance with section 37(8) of the FOI Act, provide for a right of access by parents or guardians to the personal information of individuals who, at the time of the request, have not attained full age, and where the release of the information would, in the opinion of the public body and having regard to all the circumstances, be in the child’s best interests.
Some of the information withheld by the HSE in this case relates to the applicant's son or daughter who are both currently minors. Information relating to the applicant's daughter has been refused from pages 4, 5, 83 and 84 and appendices 1 and 2 of the records from the Human Resources Department in Merlin Park. Information relating to the applicant's son has been refused from pages 3, 20, 24, 28, 85, 86, 90 and 94 and appendices 3, 4, 8 and 12 of the records from the Human Resources Department in Merlin Park. In both cases the information relates to applications for parental leave by the applicant with respect to his two children.
The Supreme Court held in the case of McK v. The Information Commissioner[2006] IESC 2, available at http://www.oic.ie/www.oic.ie, that a parent is entitled to a rebuttable presumption that access to his or her child's information is in the best interests of the child.
The Minister has published guidance in relation to access to records by parents under section 37(8) of the FOI Act (i.e. Central Policy Unit Notice 25, available on www.foi.gov.ie). Section 48(3) of the FOI Act provides that FOI bodies "shall have regard to" such guidance when performing their functions under the FOI Act. In particular, section 2.1(B) of the Minister's guidance lists the following as factors to be considered:
I have no argument before me to indicate that either of the applicant's children would object to the release of this information to the applicant. Bearing in mind the presumption in favour of access by parents to information relating to their minor children, I find that the HSE was not justified in refusing the applicant access to information contained in the relevant records relating to his two children.
I will now proceed to consider whether subsections (2) or (5) of section 37 apply to the remainder of the information to which I have found subsection (1) to apply.
Section 37(2) 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 third parties 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 considering the public interest test at section 37(5)(a), it is 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 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.
Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the actual or perceived reasons for a request must generally be disregarded in deciding whether to grant or refuse an access request under the FOI Act. In the context of determining whether to grant a request in the public interest under section 37(5)(a) of the FOI Act, this means that the reasons given for the request may be considered only insofar as they reflect a true public interest, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.
The FOI Act recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. Indeed, an FOI body, in performing any function under the Act, must have regard to, among other things, the need to achieve greater openness in the activities of public bodies, to promote adherence by them to the principle of transparency in government and public affairs and to strengthen the accountability of decision making in public bodies (section 11(3) refers).
On the other hand, the Act also recognises the public interest in the protection of the right to privacy. This is evident both in the language of section 37 and in 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.
The question I must consider, therefore, is whether the public interest in enhancing the transparency and accountability of the HSE outweighs, on balance, the significant public interest in protecting the privacy rights of the individuals concerned. It is important to note that the release of records under FOI is, in effect, regarded as release to the world at large as the Act places no restriction on the uses to which records released under FOI may be put. Given also the significant public interest in the protection of privacy rights, I find that the public interest in granting access to the personal information contained in the records at issue does not, on balance, outweigh the privacy rights of the third parties concerned.
I find, therefore, that section 37(5)(a) does not apply and that the HSE was justified in refusing access to the relevant records under section 37(1).
I note, nevertheless, that the HSE has indicated that it is willing to offer the applicant the opportunity to inspect some of the records in their entirety. While I am satisfied that the HSE was justified in refusing the applicant access to these records under the FOI Act, it remains open to him to accept the HSE's offer.
The HSE refused access to a number of records under section 30(1)(c). While it also cited section 30(1)(b) in support of its refusal of five of those records. I will consider the applicability of section 30(1)(c) in the first instance, given its potential wider applicability.
Section 30(1)(c) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be carried on by or on behalf of the Government or an FOI Body.
The exemption does not contain a harm test but is subject to a 'public interest override' i.e. even where the requirements of subsection (1) have been met, the exemption does not apply where the public interest would, on balance, be better served by granting access than by refusing to grant the request. Any potential level of harm that may result from release would be relevant to the public interest considerations in section 30(2).
An FOI body relying on section 30(1)(c) should identify the relevant negotiations at issue. Relevant factors in considering whether there is a negotiation include whether the FOI body was trying to reach some compromise or some mutual agreement. An FOI body relying on this exemption must show that release of the record could reasonably be expected to disclose positions taken (or to be taken), etc., for the purpose of any negotiations.
The HSE relied on section 30(1)(c) to refuse access to the following pages:
- Pages 4-6 of the Roscommon Maintenance Department records
- Page 27 of the Roscommon Maintenance Department records
- Pages 31-32 of the Roscommon Maintenance Department records
- Pages 1-4 of the Roscommon Human Resources Department records
- Page 14 of the Roscommon Human Resources Department records
- Pages 20-22 of the Roscommon Human Resources Department records
- Page 23 of the Roscommon Human Resources Department records
- Pages 70-72 of the Sacred Heart Hospital & Áras Naomh Chaolainn records
- Pages 81-82 of the Sacred Heart Hospital & Áras Naomh Chaolainn records
- Pages 83-84 of the Sacred Heart Hospital & Áras Naomh Chaolainn records
- Page 89 of the Sacred Heart Hospital & Áras Naomh Chaolainn records
- Page 106 of the Sacred Heart Hospital & Áras Naomh Chaolainn records
In its submission to this Office the HSE argued that the relevant records contain information relating to considerations and positions to be taken by HSE personnel in relation to the ongoing management of the industrial relations matter concerning the applicant. It argued that the release of the records would disclose details of its position and proposed positions in the ongoing negotiations seeking to resolve this matter.
Having examined the records at issue I accept that they contain positions taken or to be taken in relation to the resolution of the ongoing industrial relations matter concerning the applicant. I also that discussions aimed at resolving the matter can be termed a negotiation for the purposes of reaching some compromise, settlement or mutual agreement. I therefore find that section 30(1)(c) applies to all the relevant records.
Subsection (2) of section 30 provides that subsection (1)(b) does not apply where the public interest would, on balance, be better served by granting than by refusing the request.
As I have mentioned above, the FOI Act recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions and the requirement on
those bodies, in performing any function under the Act, to have regard to, among other things, the need to achieve greater openness in the activities of public bodies, to promote adherence by them to the principle of transparency in government and public affairs and to strengthen the accountability of decision making in public bodies.
On the other hand, the HSE argued that there is a public interest in allowing it to protect its positions, both taken and to be taken, in relation to the ongoing management of the industrial relations matter concerning the applicant. It argued that there is a public interest in protecting the efficient and effective management of the HSE and that the release of the records at this stage while the industrial relations matter is ongoing may prejudice the case.
The Act requires that the public interest in releasing information which might contribute to the openness and transparency of public bodies must be balanced against the harm which might be occasioned by its release. Section 30(1)(c) is an explicit recognition of the fact that there is a public interest in public bodies being able to protect their negotiating positions. There is also a public interest in protecting a public body’s ability to manage and resolve industrial relations disputes as efficiently as possible. If a public body was required to disclose its negotiating position in relation to an industrial relations matter while the matter was still ongoing, I am satisfied that its ability to manage and resolve such matters would be impaired.
In the circumstances, I find that the public interest would not, on balance, be better served by the release of the records at issue.
As I have found all of the records that the HSE sought to protect under section 30(1)(b) to be exempt from release under section 30(1)(c), it is not necessary for me to consider the applicability of that section to the relevant records.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the HSE in this case. I direct the HSE to release the information relating to the applicant's daughter on pages 4, 5, 83 and 84 and in appendices 1 and 2 of the records from the Human Resources Department in Merlin Park. I also direct the release of information relating to the applicant's son on pages 3, 20, 24, 28, 85, 86, 90 and 94 and in appendices 3, 4, 8 and 12 of the records from the Human Resources Department in Merlin Park.
I find that the HSE was justified in refusing access to the remaining information at issue under sections 30 and 37 of the FOI 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 by the applicant 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.
Stephen Rafferty
Senior Investigator