Decision
Ms X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: 130004
Published on
From Office of the Information Commissioner (OIC)
Case number: 130004
Published on
Whether the HSE has justified its decision to refuse to release certain records relating to the applicant's stay in a specified hospital in the period September 2011 to May 2012
27 February 2014
On 23 July 2012, the applicant made an FOI request for her complete file from a hospital in which she had been a patient, in the period September 2011 to May 2012. The HSE, in its decision of 12 November 2012, released some of the records sought and withheld others on the grounds that they were subject to mandatory exemptions from release, under section 26(1) and section 28(1) of the FOI Act, subject to the relevant 'public interest tests' (see 'Analysis' below). In the decision letter, the HSE expressed the view that the 'public interest tests' did not support the release of the material which had been withheld. The applicant sought an internal review of the HSE's decision on 17 November 2012. The HSE issued its internal review decision on 5 December 2012. The internal review decision upheld the original decision.
On 6 January 2013, the applicant sought a review by this Office of the HSE's decision to withhold certain records relevant to the FOI request.
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 various contacts between this Office and the applicant, and, in particular, the 'preliminary views letter' sent to her, dated 21 January 2014, by Mr. Richie Philpott, 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 scope of this review is confined to whether or not the HSE has justified its decision to withhold certain records from the applicant.
As stated above, records were withheld by the HSE under both sections 26 and 28 of the FOI Act. Five records were withheld under section 26, and these records consist of conversations between the hospital and certain third parties, and contain personal information of both the applicant and the third parties involved. While the HSE has exempted those records from release under section 26(1) of the FOI Act (relating to information received by a public body in confidence), in my view section 28(5)(B), which covers joint personal information, is the more appropriate exemption to consider in respect of the records in question.
The balance of the withheld records were exempted from release, by the HSE, under Section 28(1) of the FOI Act, on the grounds that they contained personal information pertaining to third parties.
Section 28 - Personal Information
Section 2 of the FOI Act includes a definition of personal information, defining it as "information about an identifiable individual that:- (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual... ". The records to which the section 28(5)(B) exemption appears to apply fall within this definition, in respect of both the applicant and the family or friends of the applicant.
Section 2 also gives twelve examples of types of information which are considered to comprise personal information within the terms of the Act. The list includes "...the name of an individual where it appears with other personal information relating to an individual or or where the disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual... ", and also "...the views or opinions of another person about the individual... ". The records withheld by the HSE under section 28(1) fall within these two types.
Section 28(1)
Section 28(1) of the FOI Act provides that, subject to other provisions of section 28, 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(2)
Section 28(2) provides for the release of a record to which section 28(1) applies in a number of circumstances. These are: where the record relates to the applicant; where the third party consents to the release of the records to the applicant; where the information is of a kind that is available to the general public; where the third party was informed prior to the information being given that it belonged to a class of information that would or might be made available to the general public; or, finally, where disclosure of the information is necessary to avoid a serious and imminent danger to the life or health of an individual. Having examined the details to which I have found section 28(1) to apply, I am satisfied that none of the circumstances identified at section 28(2) arises in this case.
Section 28(5)
Section 28(5) provides that a record containing the personal information of a third party may be released in certain limited circumstances. The exemption from release under section 28(1) could be set aside if (a) 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, or (b) the grant of the request would benefit the individual. I do not consider section 28(5)(b) to be of relevance in this case, as I do not consider that release of the information at issue would benefit the individuals to whom it relates.
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 of 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. However, I am not satisfied in the circumstances of this case that this public interest is sufficient to warrant the breach of the third parties' rights to privacy. I find that the details to which I have found section 28(1) to apply should not be released further to section 28(5)(a) of the FOI Act.
Section 28(5B)
Section 28(5B) of the FOI Act protects records from release where access to the records 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. In this case, as mentioned above, the relevant records consist of records of telephone conversations between the hospital and certain third parties, release of which would disclose personal information pertaining both to the requester and to the third parties involved. I therefore consider that the records in question are exempt in accordance with his section.
Once again there is a public interest test to be applied in relation to this exemption. However, the same position applies in relation to the the public interest, in relation to these records, as applies to the records exempted under section 28(1) above, and, accordingly it is my view that they should not be released. I find accordingly.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby uphold the HSE's refusal of the records concerned.
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.
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Sean Garvey
Senior Investigator