Decision
Ms A and The Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-146431-Q4F4J1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-146431-Q4F4J1
Published on
Whether the HSE was justified, under section 37(1) of the FOI Act, in refusing access to correspondence between two named staff members that contains information relating to the applicant
12 July 2024
In a request dated 7 December 2023, the applicant sought access to emails between two named HSE staff members during October and November 2022 that relate to her. The applicant stated in her original request that she “was not interested in third party names.” In response to a query from the HSE about the identity of the named individuals, the applicant provided their email addresses. On 17 January 2024, the HSE refused the applicant’s request under sections 35(1)(a), 37(1), and 37(7).
On 19 January 2024, the applicant sought an internal review of the HSE’s decision. On 9 February 2024, the HSE issued its internal review decision, refusing access to the records sought under section 15(1)(a) of the FOI Act, on the basis that the records requested do not exist between the email addresses provided by the applicant. On 9 February 2024, the applicant applied to this Office for a review of the HSE’s decision. In her application, the applicant raised concern regarding the HSE’s reliance on section 15(1)(a) in its internal review decision. The applicant pointed to the fact that the HSE had stated in its original decision that records did exist but were refused, and now the HSE were claiming no records existed. In further correspondence with this Office, the applicant said that the Data Protection Commission had informed her that records do exist, but they had been refused due to third party names. She said she had been very specific that she did not require third party names.
In submissions to this Office, the HSE said that it no longer wished to rely on section 15(1)(a), and instead reverted to its original decision to refuse the records sought under sections 35(1)(a) and 37(1) of the Act. The HSE provided this Office with a copy of the records at issue. The Investigating Officer subsequently provided the applicant with details of the HSE’s submissions and invited the applicant to make submissions in the matter, which she duly did.
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 both parties during the course of this review. 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.
As noted above, in its internal review decision the HSE refused the applicant’s request under section 15(1)(a) of the Act. In its submissions to this Office the HSE subsequently reverted to its original decision claiming that the records are exempt under sections 35 and 37 of the Act. 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. Accordingly, this review is concerned solely with whether the HSE was justified in refusing access, under sections 35(1)(a) and 37(1) of the FOI Act, to the records sought.
Before I address the substantive issues arising in this case, I would like to make some preliminary comments.
Firstly, although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.
Secondly, it is also important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
As noted above, in its submissions to this Office the HSE said it refused access to the records at issue in this case under sections 35 and 37 of the FOI Act. As I consider section 37 to be most relevant, I propose to consider this provision first.
Section 37(1) 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 Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition.
Certain information is excluded from the definition of personal information, as set out in section 2 of the FOI Act. Paragraph (I) provides that where the individual is or was a staff member, the definition does not include 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 those functions. Paragraph (I) does not provide for the exclusion of all information relating to staff of an FOI body. The Commissioner takes the view that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a public servant in the context of the particular position held or any records created by the public servant while carrying out his or her functions. The exclusion to the definition of personal information at Paragraph (I) does not deprive staff members in FOI bodies of the right to privacy generally.
Mindful of the provisions of section 25(3) which requires the Commissioner to take all reasonable precautions to prevent the disclosure of information in an exempt record, I cannot provide a detailed description of the records in question. However, I can say that, while the records contain some references to the applicant, the records primarily concern sensitive personal matters of individuals other than the applicant. I note too there are a number of duplicate emails within the records provided by the HSE to this Office.
During correspondence with both the HSE and this Office, the applicant stated that she did not require “third party names.” In her submissions to this Office, the applicant also stated her belief that when the data has been anonymised it is no longer personal data and that the provisions of the Act relied upon by the HSE no longer apply. The applicant also said that she is aware of certain information contained in the records.
For the benefit of the applicant, I should state that the fact that the requester may be aware of the nature of the information withheld does not mean that it cannot be regarded as personal information relating to a third party for the purposes of the FOI Act. Furthermore, I am satisfied that it would not be possible to anonymise the records as to attempt do so would in my view still disclose the personal information of the relevant third parties. It is also worth noting here that section 18(1) of the Act 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). This Office takes the view that the provisions of section 18 do not 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, this Office is not in favour of the cutting or ‘dissecting’ of records to such an extent. Being ‘practicable’ necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Having examined the withheld information, I am satisfied that it comprises either personal information relating solely to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to personal information relating to other identifiable individuals i.e. joint personal information. I am satisfied that the release of the records at issue, even in redacted form, would involve disclosure of personal information relating to individuals other than the applicant. I find that section 37(1) of the Act applies.
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 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 records 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 her submissions to this Office, the applicant referred to her constitutional right to fair procedures. She also argues that Article 8 of the EU Charter of Fundamental rights not only affirms the right to personal data protection, but also spells the core values associated with this right. She argues that this provides that the processing of personal data must be fair, and based on the consent of the person concerned. She contends that individuals have the right to access their personal data, to have it rectified, erased or amended.
The FOI Act provides a right of access to information in the possession of public bodies to the greatest extent possible consistent with the public interest and the right to privacy. 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).
I accept that there is a public interest in enhancing transparency around the manner in which the HSE carries out its functions generally. However, the records at issue in this case contain sensitive personal information about individuals other than the applicant. While certain information contained in the records also relates to the applicant, in my view, releasing these records to the world at large would result in a significant intrusion into the privacy rights of those individuals. I have considered the submissions of the parties and the contents of the records carefully and I am satisfied that the public interest is best served by refusing access to these records. I find that the protection of the privacy rights of the third parities at issue outweighs the public interest in release of the records at issue. I find, therefore, that section 37(5)(a) does not apply.
In conclusion, I find that the HSE was justified in refusing access to information in the records at issue under section 37(1) of the FOI Act. In the circumstances, having found that section 37(1) of the Act applies, it is not necessary for me to consider whether section 35(1)(a) of the Act also applies.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision to refuse access to the records sought by the applicant under section 37(1) 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.
Richard Crowley
Investigator