Decision
Mr. X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-141252-L1F4T3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-141252-L1F4T3
Published on
Whether the HSE was justified in refusing access to records relating to the decision that a named medical device manufacturer would not attend at the applicant’s home to fix/maintain certain medical equipment
3 July 2024
In a request dated 17 May 2023, the applicant sought access from the HSE to all correspondence between Waterford Primary Care Occupational Therapy Department and a named manufacturer of healthcare devices (“the manufacturer”) relating to a decision by the latter not to call to his home to repair/maintain certain medical equipment.
In a decision dated 29 June 2023, the HSE refused the applicant’s request, citing section 37 of the FOI Act as the basis for its decision. On 7 July 2023, the applicant sought an internal review of the HSE’s decision. In its internal review decision of 27 July 2023, the HSE affirmed its original decision. On 4 August 2023, the applicant applied to this Office for a review of the HSE’s decision.
In the course of conducting this review, I formed the view that the interests of a third party – specifically, the manufacturer – were potentially affected by the release of the records. I therefore contacted the manufacturer to offer it the opportunity to make submissions in relation to the matter. The manufacturer subsequently made submissions and, in addition to section 37(1), sought to rely on an additional provision of the FOI Act, specifically section 35, as a basis for its support of the HSE’s decision to withhold the records. As the applicant had not had an opportunity to consider the potential applicability of section 35 in the context of this case, I wrote to him to put him on notice of same and to invite him to make any further submissions that he wished. The applicant subsequently made further submissions on section 35.
In addition, in the course of this review the HSE indicated that it had carried out a further analysis of its decision on the applicant’s FOI request and had formed the view that it had refused access to the records incorrectly. It indicated that it was now issuing the records sought by the applicant to him in full, with the exception of minimal redactions made in relation to personal information under section 37(1). The HSE also provided this Office with a copy of the records as issued to the applicant. Furthermore, following further engagement with this Office, the HSE issued the records to the applicant again with additional material, which had remained redacted following its first review, now released.
On foot of the HSE’s further review of its decision, and subsequent release of records, I contacted the applicant to explore with him the possibility of settling the matter on the basis of the records that had been newly issued to him by the HSE. The applicant indicated that he remained dissatisfied and wished this Office to examine whether the remaining redactions made by the HSE under section 37(1) were justified. In his correspondence, the applicant also contended that additional records ought to exist which should have been considered for release in response to his FOI request. In light of this assertion, I took the view that I was also required to consider the potential applicability of section 15(1)(a) of the FOI Act, which relates to the administrative refusal of an FOI request where the records sought do not exist or cannot be found after reasonable steps have been taken. I contacted the HSE to seek submissions from it on section 15(1)(a), and upon receipt of those submissions put the details of the HSE’s position to the applicant in order to afford him the opportunity to also make any further submissions that he wished. The applicant subsequently made further submissions and I have considered these in full.
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 parties. 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.
It is important to note that a review by this Office is considered to be “de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.
I also wish to note that the newly issued records by the HSE, which as noted above have essentially been released in full with minimal redactions made under section 37(1), in practical terms render the submissions of the manufacturer moot, as the material in the records in respect of which it cited section 35(1) of the FOI Act has in fact been released to the applicant by the HSE. I therefore do not consider it necessary to examine the potential applicability of section 35(1) in the course of this review.
This review is solely concerned with whether the HSE was entitled to refuse access, under sections 37(1) and 15(1)(a) of the FOI Act, to the records sought by the applicant.
The HSE identified two records that fell within the scope of the applicant’s request. Record 1 comprises email correspondence between the HSE and the manufacturer spanning the period 24 February 2023 to 10 May 2023. Record 2 consists of email correspondence between the HSE and the manufacturer covering the period 17 January 2023 to 10 May 2023. As outlined above, following its review of its original decision on this case, the HSE released the records to the applicant with a small amount of material redacted pursuant to section 37(1).
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 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 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition.
In addition, Paragraph (I) of section 2 excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, 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 the functions aforesaid ...".
Furthermore, under Paragraph (II) of section 2, where the individual is or was a service provider to an FOI body, 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, is similarly excluded from the definition of personal information.
In its original submissions regarding section 37(1), the HSE stated that it sought to rely on this provision of the FOI Act on the basis that the records sought by the applicant contained the personal information of third parties, specifically the names of staff members of the manufacturer. As noted above, these submissions were made in the context of the HSE’s original decision on the FOI request, wherein it relied on section 37(1) to not simply redact the names of these staff members from the records, but to withhold the records from release entirely. However, I consider that the HSE’s arguments in its initial submissions on section 37(1) apply equally to its subsequent decision to release the records, with minimal redactions of information that it deemed personal. Moreover, in correspondence accompanying the copies of the records it provided to this Office following its review of its original decision, the HSE confirmed that the material that it continued to redact was personal information relating to a third party.
In submissions from the manufacturer, it argued that section 37(1) applied because the information in the records was personal to its employees, and included opinions which, if released, would affect their privacy rights and welfare. The manufacturer also argued that the release of the records could also impact the future employment opportunities of the relevant staff members, although it did not elaborate on the basis for this view. Again, while these submissions were made in the context of the HSE’s original decision to withhold the records fully, I consider that the apply equally to the material that remained redacted following the HSE’s review of its decision.
In relation to the arguments above of the HSE and the manufacturer, I would first of all note that the manufacturer is a service provider to the HSE (a fact confirmed by the HSE in correspondence exchanged with this Office). As outlined above, Paragraph (II) of section 2 of the FOI Act excludes from the definition of personal information the name of an individual or information relating to the office, position, functions etc of that individual, as well as anything written or recorded by the individual in the course of the performance of their functions, in the case of service providers to HSE bodies. This being said, this Office has previously found that this exclusion does not apply to the names of staff members of service providers, and has accepted that the relevant organisation itself is the service provider, and not the individual staff members of that organisation who might have represented it in correspondence with the relevant FOI body. In other words, the exclusions to the definition of personal information do not encompass all information relating to staff members of service providers to FOI bodies, and individual staff members are still entitled to the right to privacy generally. Applying this reasoning, I accept that the names, email addresses and contact details that appear in the records relating to staff members of the manufacturer are personal information for the purposes of section 2 of the FOI Act, and therefore fall within the scope of the exemption in section 37(1).
For the sake of completeness, I should note that, in the records released to the applicant initially following the HSE’s review of its original decision, certain information in the body of the emails – essentially, views and opinions expressed on behalf of the manufacturer – remained redacted. However, as outlined above, following further engagement with this Office, that information was also released. As such, the only material in the records that remains at issue is that above – the names, email addresses and contact details of staff members of the manufacturer – which I have found to fall within the scope of section 37(1).
However, the matter does not end there, as 37(1) is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, 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 request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the FOI Act 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 FOI 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 FOI Act places no constraints on the uses to which a record released under FOI can be put. With certain limited exceptions provided for under the Act, such as under sections 37(2)(a) and 37(8) (which I consider below), 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 FOI 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) which provides that, in performing any functions under the FOI 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 its submissions, the HSE identified a number of public interest factors both in favour of and against the release of the personal information in the records. In relation to the former, it identified the public interest in the public knowing how the HSE performed its functions; the public interest in individuals knowing that information held about them by public bodies is accurate; and the public interest in individuals being able to exercise their rights under the FOI Act. In terms of the latter, the HSE identified the public interest in protecting the right to privacy of individuals identified in the records; the public interest in individuals being able to communicate in confidence with public bodies without fear of the disclosure of personal or sensitive information; the public interest in FOI bodies being able to perform their functions effectively; and the public interest in safeguarding the flow of information to FOI bodies. The HSE concluded that the public interest in preserving the privacy rights of the relevant third parties outweighed the public interest in the release of this information.
In its submissions on the public interest, the manufacturer stated that the release of the information in the records concerned its dealings with the HSE in relation to one individual (the applicant). It argued that its suggestions, actions and opinions, as contained in the records, did not affect either the implementation of its contract or any interaction it may have under the terms of its contract with any other member of the public.
In his application for a review of the HSE’s decision, 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 relevant individuals, he indicated that he wanted access to the records as the information therein was vital to his independence and quality of living, pertaining as it did to the maintenance of certain equipment provided to him by the HSE. While the applicant has essentially expressed a private interest for seeking access to the records, it seems to me that his reasons for seeking access to the records are reflective of a public interest in ensuring that the HSE is correctly and adequately performing its role in the provision and maintenance of certain medical equipment.
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 FOI 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).
While I accept that the release of the records at issue would serve to somewhat enhance transparency around the performance by the HSE of its function in the provision and maintenance of certain medical equipment, I consider that the degree of enhancement would be quite limited. On the other hand, while the records at issue are not of an inherently sensitive and private nature in relation to the personal information of the relevant third parties, nonetheless they do contain personal information and I must regard their release as being effectively, or at least potentially, to the world at large. It is also of note that, in his application to this Office for a review of the HSE’s decision on his FOI request, the applicant stated that he would be happy for the personal information of third parties to be redacted. In the circumstances, I do not accept that the public interest in releasing the records outweighs, on balance, the privacy rights of the relevant individuals. I find, therefore, that section 37(5)(a) does not apply.
Accordingly, I find that the HSE was justified in refusing access, under section 37(1) of the FOI Act, to the information I have identified as comprising personal information, specifically the names, email addresses and contact details of the employees of the manufacturers that appear in the records.
As outlined above, section 15(1)(a) of the FOI Act provides that a body to whom an FOI request is made may refuse to grant the request where the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. Section 15(1)(a) may apply where the records sought never existed, or where the records may have existed in the past, but do not currently exist or cannot now be found.
The role of this Office in cases involving section 15(1)(a) is to review the basis on which the FOI body has taken the position that the relevant record(s) do not exist, or cannot be found after all reasonable steps to ascertain the location of the record(s) have been taken, and make a finding on whether the FOI body’s position is reasonable.
As referred to above, in correspondence with the applicant he outlined his view that additional records ought to exist and which should have been considered for release by the HSE. In particular, the applicant argued that he would have expected there to be additional communication between the HSE and the manufacturer in relation to the subject matter of his FOI request. Specifically, he argued that there should have been more communication between the two parties outlining the beginnings and origin of the issue that underlined his request.
In response to this argument, the HSE indicated that all material relevant to the applicant’s request had been identified and considered for release. In relation to the initial communications with the manufacturer regarding the issue that underpinned the applicant’s FOI request, the HSE stated that this contact had taken place by telephone and that no record of it existed. In particular, the HSE stated that the specific telephone call from the manufacturer outlining its concerns regarding making visits to the applicant’s home had occurred on 5 January 2023, and thereafter the concerns raised were detailed in an email dated 17 January 2023 which forms part of the records provided to the applicant. The HSE further pointed out that the emails comprising the records showed it repeatedly requesting the manufacturer to provide more details of its concerns in writing to the HSE, but that no substantive response was received in this regard.
In addition, for the purposes of reviewing the HSE’s position that no additional records existed or could be located after taking reasonable steps, I sought information from it regarding its policies and practices in relation to record storage, retention and destruction. In this regard, the HSE advised as follows. It first of all stated that all correspondence relating to the subject matter of the applicant’s request was held in his patient notes, as well as in the emails of the Clinical Manager and the Senior Occupational Therapist. The HSE stated that each of these locations were searched thoroughly. It reiterated that no records existed in relation to telephone calls.
The HSE further advised that it held seven files relating to the applicant, three of which contained information regarding correspondence with the manufacturer. The HSE advised that all of the relevant records identified in its search of these files had been identified and scheduled in response to the applicant’s FOI request. The HSE confirmed that the relevant records comprised email correspondence to and from the Occupational Therapy Manager, the Senior Occupational Therapist, the Network Manager and the manufacturer. The HSE further outlined that, although the patient files also contained notes taken by the therapist, these did not relate to the subject matter of the applicant’s FOI request and therefore were not scheduled for consideration in response to the request. The HSE confirmed that, while an electronic database also existed containing information relating to the applicant, this information was limited to records of repairs to his medical equipment, and there were no additional digitally-held records containing information relevant to the subject matter of his FOI request. The HSE also provided this Office with details of its practices regarding record storage, retention and destruction generally, which I do not consider it necessary to outline in detail here.
I put to the applicant the information provided by the HSE regarding the additional records that he asserted ought to exist, in order to afford him the opportunity to provide any additional submissions that he wished. In response, the applicant stated that, in his view, the conversation between the Occupational Therapist, Clinical Manager, and other Managers, was vital information to which he should have access. He argued that these conversations related to him and his interactions with the manufacturer.
I have considered the applicant’s argument and the information provided by the HSE in relation to its searches in response to this FOI request, and to its storage and retention practices, and I find as follows. I consider that the HSE has provided a coherent and adequate account of its relevant practices and the non-existence of the additional records which the applicant argues should have been provided. In particular, the HSE has in my view provided a plausible explanation for the lack of additional records relating to the initial communication between the parties on the subject matter that gave rise to the applicant’s FOI request. It seems to me perfectly reasonable to suggest that the manufacturer’s concerns that underpin this review may have been brought to the attention of the HSE by way of a telephone call, and that no records would necessarily have been generated to document that call. I can certainly fully understand the applicant’s desire to receive as much information as possible regarding the context for, and background to, the manufacturer’s decision to stop attending at his home to maintain and/or repair the relevant medical devices. However, it does not follow that additional records must exist containing further information in this regard. There is no information or evidence available to me that would suggest that additional records exist that the HSE failed to identify and consider for release, or that the searches carried out by the HSE, or its storage and retention practices, were in any way deficient. In the absence of any such information, I find that the HSE was entitled to refuse this aspect of the applicant’s request under section 15(1)(a) of the FOI Act, on the basis that no additional records relevant to the FOI request exist or could be found after reasonable steps to locate them were taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision. I find that the HSE was entitled to withhold, under section 37(1), the personal information in the records, specifically the identifying information relating to employees of the manufacturer. Furthermore, in relation to the additional records that the applicant asserted ought to exist, I find that the HSE was entitled to refuse this aspect of the FOI request under section 15(1)(a) 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.
Neill Dougan
Investigator