Decision
Mr. Y and The Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-151056-B0Y9K6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-151056-B0Y9K6
Published on
Whether the HSE was justified in refusing access to information in records relating to the applicant’s son under section 37(1) of the FOI Act, and in refusing access, under section 15(1)(a), to further records other than those already identified on the basis that no further relevant records could be found
17 April 2025
This applicant’s son is a service user of Waterford Intellectual Disability Association (WIDA). On 12 June 2024 she sought access to the following:
1. A copy of the minutes/notes taken at WIDA’s psychological review of the applicant’s son dated 8 May 2024;
2. A copy of the minutes/notes taken at WIDA’s psychological review of the applicant’s son dated 1 February 2024;
3. All safeguarding put in place by WIDA with regard to the applicant’s son from 1 January 2024 to 14 June 2024;
4. WIDA’s incident reports for the applicant’s son for the period 1 January 2024 to 14 June 2024;
5. Any correspondence from four named staff members or any staff members of WIDA relating to the applicant;
6. A copy of the applicant’s son’s current behaviour support plan;
7. A copy of all current restrictive practices and restrictions relating to the applicant’s son; and
8. A copy of all payments made by the applicant’s son to WIDA from 1 January 2024 to 14 June 2024.
In a decision dated 9 July 2024 the HSE part-granted the applicant’s request, refusing access to certain information on the basis of section 37 relating to personal information.
On 11 July 2024 the applicant sought an internal review of this decision. The HSE did not issue a decision on this request for an internal review within the statutory timeframe. Therefore, on 7 August 2024 the applicant applied to this Office for a review of this deemed refusal. In the course of engagement with this Office, the HSE indicated that an internal review decision had been prepared, dated 2 August 2024, but due to an administrative error the transmission of the correspondence to the post room for onward transmission to the applicant had been delayed. The HSE apologised to the applicant for this oversight.
The late internal review decision affirmed the original decision to refuse access to certain information in the relevant records on the basis of section 37. However, the internal reviewer part-released pages 16-18 of the Part 4 records to the applicant which had previously been refused to the applicant as falling outside the scope of her request.
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 her application for review and to the submissions made by the HSE in support of its decision. 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.
In her request for an internal review and her appeal to this Office, the applicant had made specific reference to pages 16-18 of the Part 4 records which had been refused in the original decision as falling outside the scope of the applicant’s request. However, as set out above, the late internal review decision part-released these records to the applicant, with certain information refused on the basis of section 37 relating to personal information. In the circumstances, I am satisfied that the sole issue which I am required to examine with respect to these records is the information which has been refused on the basis of section 37.
This review is therefore solely concerned with whether the HSE was justified in refusing access to certain information in the relevant records on the basis of section 37(1) of the FOI Act, and in refusing access to further records, under section 15(1)(a) of the Act, on the basis that no relevant records exist or can be found after all reasonable searches have carried out to locate them.
Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, 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.
In addition, I wish to note that 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. Thus, while certain provisions of the FOI Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an FOI request for access to records.
The HSE identified the following records as falling within the scope of the applicant’s multi-part request:
The HSE provided full access to the Part 3 and Part 7 records, however, it refused access to certain information in the Part 1, Part 2, Part 4, Part 5, Part 6 and Part 8 records on the basis of section 37 relating to personal information.
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 a request if access to the record would involve the disclosure of personal information (including personal information relating to a deceased individual). Section 2 of the FOI Act defines the term “personal information” as information about an identifiable individual that would, in the ordinary course of events, by known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. Section 2 also details 14 specific categories of information which is personal without prejudice to the generality of the foregoing definition, including, but not limited to (iii) information relating to the employment or employment history of the individual.
Certain information is excluded from the definition of personal information. Paragraph II of the definition provides that where the individual is or was a service provider, the definition does not include the name of the individual or information relating to the service or terms of the contract or anything written or recorded in any form by the individual in the course of and for the purpose of the provision of the service. A similar exclusion for staff members of FOI bodies is found at Paragraph I. However, the exclusions to the definition do not exclude all information relating to staff members of FOI bodies or service providers. Individual staff members are still entitled to the right to privacy generally.
In its submissions to this Office, the HSE said the information which has been redacted contains the personal information of third parties other than the applicant and/or her son. More specifically, the HSE said that the information comprises the names and contact details of staff members of a service provider to the HSE; namely WIDA.
In her appeal to this Office, the applicant said that she was requesting that the records be released to her in their full format as the redactions severely impinged on her ability to read the records at issue and affected the overall clarity and understanding of the records. The applicant said that the family notes mention her directly and she wishes to know the names of the staff members writing these notes. In addition, the applicant in correspondence with this Office dated 13 March 2025 reiterated her wish to see the full versions of the records which had been released to her in a redacted format.
As noted above, the HSE has redacted the names and contact details of certain individuals from the records who are staff members of WIDA. It is important to note that the fact that a requester may be aware of the nature of the withheld information does not mean that it cannot be regarded as personal information relating to a third party for the purposes of the FOI Act. Having considered the matter, I am satisfied that this organisation itself is the service provider to the HSE and that individuals named in the records in relation to that company are staff members or representatives, rather than service providers for the purposes of the FOI Act. In the circumstances of the case, I therefore find that the exclusion to the definition of personal information does not apply and that the names and details of individual staff members comprise personal information and that section 37(1) of the Act applies.
While I have found that the names and details of third party individuals referenced in the records comprise personal information such that section 37(1) applies, that is not the end of the matter as subsection (1) is subject to the other provisions of section 37.
Section 37(2)
Section 37(2) provides that section 37(1) does not apply if:
a) subject to subsection (3), the information concerned relates to the requester concerned,
b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester,
c) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or
e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual.
I am satisfied that sections (a), (b), (c), (d) and (e) do not apply in this case.
Section 37(5)
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 in this case.
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 to privacy of the individual to whom the information relates.
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.
The applicant in this case has said that there is a public interest in families of vulnerable adults have complete access to records held by public bodies. In addition, the applicant said that there are gaps in information and gaps in explanations relating to financial information regarding payments made by her son to WIDA. Finally, the applicant argued that she should have access to names of individuals who authored reports relating to her as some of the information is incorrect and misleading and has the potential to negatively impact her and her son.
I accept that there is a public interest in allowing for scrutiny by family members of the level and quality of care provided to vulnerable adults. However, it is not apparent to me that the release of the information at issue would serve that public interest to any real extent. On the other hand, 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, therefore, will be set aside only where the public interest served by granting release (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 have carefully considered the remaining information in the relevant records to which I have found section 37(1) to apply. It seems to me that the HSE has endeavoured to strike a balance by releasing information relating to WIDA itself, while withholding information relating to staff members. Having considered the specific arguments advanced by the applicant, it seems to me that the release of the personal information at issue would do little to enhance transparency in respect of the care provided to the applicant’s son. The information which has been refused is personal information relating to third parties and I must regard its release as being effectively, or at least potentially, to the world at large. Having considered the matter, and bearing in mind the strong public interest in protecting the right to privacy, I do not accept that the public interest in releasing the information outweighs, on balance, the privacy rights of the relevant individuals. In particular, I am not satisfied that a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure has been advanced, nor is any such reason evident to me. I find, therefore, that section 37(5)(a) does not apply.
Section 15(1)(a)
The applicant in her appeal to this Office queried three specific aspects of the records released to her. First the applicant referred to the monthly payment breakdown comprising the Part 7 record and had asked whether it was possible to receive a weekly payment breakdown. Secondly, the applicant stated that she wished ‘to know if [her son] pays extra for rent every week, that is not on the payments record’. Finally, the applicant queried
why, what she referred to as an ‘incident report dated 29 February 2024’, was not identified as falling with the scope of her request.
This means that the provisions of section 15(1)(a) are also of relevance in this case. Section 15(1)(a) provides for the refusal of a request where the record sought does not exist or cannot be found. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision-maker and the reasoning used by the decision-maker in arriving at their decision and must also access the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in ‘search’ cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
I therefore sought further information from the HSE with respect to this aspect of the review. In response, it informed me that on 12 March 2025 it released a weekly payment breakdown to the applicant. The HSE also informed me that the applicant’s son pays rent directly to a named housing association with which he has a tenancy agreement. The HSE further said that the list of payments that the applicant’s son makes to WIDA are included in the service provision agreement which is in place and signed by the applicant.
With regard to the third issue raised by the applicant; namely an ‘incident report dated 29 February 2024’, the HSE informed this Office that while there is a reference in the records at issue to an ‘escalation’ on the date in question, it said that this was not an incident which impacted the health and safety of the applicant’s son or others. It further said that incident reports are completed when there is an accident, incident or near miss which was not the case here. It also provided this Office with a copy of WIDA’s Management of Challenging Behaviour Procedure which contains the following provisions:
Section 10.2 – ‘Where behaviour has posed a risk or caused a near miss incident a W4-001 Accident/Incident/Near Miss Report must be completed’
And
Section 15.1 – ‘Where a service user or member of staff sustains an injury as a result of aggression from a service user, the manager should ensure the person receives the necessary support and medical attention. The details of the incident should be documented in W4-001 Accident/Incident/Near Miss Report Form’
The HSE said that WIDA have advised that neither of the above occurred on the day in question and as such there was no incident form completed and therefore no incident reports exists dated 29 February 2024.
On 13 March 2025 I wrote to the applicant and provided her with this information. I asked the applicant if, in light of the additional information now provided by the HSE, she was satisfied that she had received all information relevant to her request. I also offered her the opportunity to provide any submissions that she wished on the matter to make prior to a final decision being taken by this Office.
On the same day the applicant responded to my correspondence. While, as set out above, the applicant commented on the section 37 elements of this case, she provided no further explanation as to why she considered that an incident report existed for the date in question, or why she remained unhappy with the information provided by the HSE with respect to the first two matters raised by her in her application to this Office. However, the applicant once again provided this Office with her internal review request which had been submitted to the HSE on 11 July 2024. I again wrote to the applicant on 3 April 2025 and asked her if she wished to make any further submissions beyond those made in her previous correspondence. By way of reply dated 7 April 2025, the applicant said she had no further comment beyond the matters raised in her correspondence dated 13 March 2025.
It is important to note that the FOI Act does not request a public body to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices (which is not of relevance in this case). Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located. We do not generally expect FOI bodies to carry out extensive or indefinite searches for records simply because an applicant asserts that records should or might exist.
Having regard to the information before this Office, and in the absence of further comment from the applicant, I see no reason to doubt the HSE’s position that it does not hold an incident report dated 29 February 2024. Likewise, in the circumstances of this case whereby the HSE has released further information to the applicant, and in the absence of any evidence to the contrary, I am satisfied that the HSE has taken all reasonable steps to locate records sought by the applicant relating to payments made with respect to her son. In the circumstances, I find that the HSE was justified in refusing access under section 15(1)(a) to any further records relevant to her requests on the basis that no such record exists or can be found after all reasonable steps to ascertain their whereabouts have been 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, under section 37(1) of the FOI Act, to withhold the information in the records that I have found to comprise personal information. I find also that the HSE was entitled to rely on section 15(1)(a) of the FOI Act to refuse, on an administrative basis, any further records which the applicant asserts should exist, on the basis that no such records in fact exists.
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.
Mary Connery
Investigator