Decision
Mr E and the Health Service Executive South (the HSE)
From Office of the Information Commissioner (OIC)
Case number: 120258
Published on
From Office of the Information Commissioner (OIC)
Case number: 120258
Published on
Whether the HSE has justified its decision to refuse to release certain records relating to the applicant's stay in a named hospital for a specified period under section 28 of the FOI Act
14 May 2014
The HSE identified 515 records on foot of the applicant's FOI request for access to medical records regarding his admission to hospital from November 2006 to May 2007. The HSE released a large portion of the records to the applicant and part granted the remaining records as it considered information contained in them to be exempt under section 28(1) of the FOI Act i.e. the records contained personal information related to third parties. This decision was upheld at internal review stage.
A number of the records considered by the HSE as being relevant to the applicant's FOI request could not form part of this review as they were dated outside of the time period specified in his original request i.e. November 2006 to May 2007. Records 114, 127, 223, 234, 245, 273, 274, 278, 279, 280, 304, 306, 378, 379, 392, 401, 405, 410, 412, 426, 427, 490, 493 and 502 refer. Similarly records released in full by the HSE during the course of the review by this Office also fell outside of the scope of this review given access was granted to the applicant. Records 174, 355, 413, 471 and 482 (duplicate of 471) refer.
In carrying out my review, I have had regard to correspondence between the HSE and the applicant as set out above; to details of various contacts between this Office and the HSE; to details of correspondence between this Office and the applicant, and, in particular, the 'preliminary views letter' sent to him, dated 28 March 2014, by Ms. Stephanie O'Connell, Investigator in this Office. I note that no response has been received from the applicant to the 'preliminary views letter', and I have therefore decided to conclude the review by way of a formal binding decision. I have also had regard to the provisions of the FOI Act and, in considering the public interest at section 28(5)(a), the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner(which I will refer to below as "the judgment").
The review is concerned solely with the question of whether the HSE was justified in its decision to refuse access to portions of records numbered 146, 147, 148, 150, 151, 152, 153, 164, 166, 167, 168, 169, 204, 350, 364, 367, 420 and 425 on the basis of section 28(1) of the FOI Act.
It is relevant to note, as a preliminary matter, that section 8(4) of the FOI Act does not allow this review to have regard to any reasons as to why the applicant is seeking the withheld details in the record (although such reasons may be relevant to consideration of the public interest). Furthermore, it is relevant to note that section 43(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Finally, it is relevant to be aware that the Courts have found that the release of a record under the FOI Act is akin to its release to the world at large.
As outlined in the preliminary views letter, section 28(1) of the FOI Act provides, subject to other provisions of section 28, that a public body shall refuse a request for a record where granting it would involve the disclosure of personal information about an identifiable individual.
Section 28(5B), also subject to other provisions of section 28, provides for the mandatory refusal of a record that contains the personal information of the person making the FOI request and also that of another party or parties.
I am satisfied that the withheld details comprise the personal information of persons other than the applicant, or personal information about the applicant that is inextricably linked to the personal information of other persons ("joint personal information"). The requirements of section 43(3) mean that I cannot elaborate further on the information concerned.
I find the withheld details to be exempt under sections 28(1) and 28(5B) of the FOI Act.
There are some circumstances, provided for at section 28(2), in which the exemptions at section 28(1) and section 28(5B) do not apply. Having examined the withheld details, I am satisfied that none of the circumstances identified at section 28(2) arise in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of their information; (c) that the information is not of a kind that is available to the general public; (d) that 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) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. No argument to the contrary has been made by the applicant, and I find that section 28(2) does not apply to the withheld details.
Section 28(5) provides that a record, which is otherwise exempt under section 28(1) or 28(5B), may be released in certain limited circumstances.
The effect of section 28(5)(a) is that a record, which has been found to be exempt under section 28(1) or 28(5B), may be released if it can be demonstrated that "on balance, 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". In the judgment referred to earlier, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates.
Following the approach of the Supreme Court, a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") must be distinguished from a private interest for the purpose of section 28(5)(a).
The language of section 28 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Accordingly, when considering section 28(5)(a), privacy rights will 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 FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. This public interest has been served to a certain extent by the material released to the applicant to date. However, being aware of the content of the withheld details, I do not consider that their release would further serve the public interest to such an extent that a breach of the third parties' Constitutional rights to privacy is justified. The applicant did not respond to the preliminary views letter and so, although invited to do so, has not identified any other true public interest that might warrant the release of the withheld details. Thus, I find that the withheld details should not be released further to section 28(5)(a) of the FOI Act.
Finally, it is necessary to consider whether section 28(5)(b) is of relevance. The effect of section 28(5)(b) is that a record, which has been found to be exempt under section 28(1) or section 28(5B), may still be released if it can be demonstrated that the grant of the request would benefit the third party or parties whose personal information is also contained in the records. The applicant has not made any case that the release to her of the personal information of the third parties would be of benefit to those parties, nor am I otherwise aware of any reason to think that this would be the case.
I find that no right of access arises further to the provisions of section 28(5)(b) of the FOI Act.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the HSE's refusal of the withheld details.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Sean Garvey
Senior Investigator