Decision
Mr. X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-111623-V5H1L7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-111623-V5H1L7
Published on
Whether the HSE was justified, under section 37(1) of the FOI Act, in refusing to release the name of a neurosurgeon who provided advice to an Independent Assessment Panel
1 November 2021
As part of the development of a national trauma system for Ireland, the HSE appointed an Independent Assessment Panel (IAP) in 2019 to provide advice on the preferred location of the Major Trauma Centre for the Central Trauma Network, and the Dublin Trauma Unit(s). The IAP advised that the Mater Hospital be designated as the Major Trauma Centre for the Central Trauma Network and that both St. Vincent’s University Hospital and Tallaght University Hospital be designated as Trauma Units for Dublin. The HSE Board subsequently made this recommendation to the Minister for Health in March 2020.
In a request dated 10 May 2021, the applicant sought access to a number of records relating to the work of the IAP including scoring sheets from hospital site visits, minutes of meetings, and correspondence. He cited a specific letter from named representatives of the HSE which, he said, indicated that the IAP or the HSE contacted a leading neurosurgeon specialising in neuro-trauma at a Major Trauma Centre in another jurisdiction who assisted the panel during its deliberations. He sought the name and affiliation of this neurosurgeon, copies of any correspondence between him/her and the HSE and/or the IAP, and/or notes of any verbal communication with him/her.
On 6 July 2021, the HSE issued a late decision, part granting the applicant’s request. It apologised for the delay which it explained was due to the cyber-attack on the HSE’s systems. It released four records in full and refused access to one record in part, under section 37 of the FOI Act (personal information). The HSE also refused access to certain categories of records sought by the applicant under section 15(1)(a) of the FOI Act, on the basis that the records did not exist.
On 10 July 2021, the applicant sought an internal review wherein he asked, among other things, whether the “leading neurosurgeon” whose name he sought, had been asked for consent to release his/her name and what his/her response was. The HSE affirmed its decision on 30 July 2021. On 13 August 2021, the applicant applied to this Office for a review of the HSE’s decision not to release the name of the “leading neurosurgeon”.
I have now completed my review in accordance with section 22(2) of the FOI Act and have decided to conclude this review by way of a formal, binding decision. In carrying out my review, I have had regard to the submissions made by the HSE in support of its decision, and correspondence from the applicant to the HSE and to this Office. I have also had regard to the content of the records released in full and in part.
The information sought by the applicant in his review to this Office, i.e. the name of the neurosurgeon, is contained within Record 5 which the Schedule of Records indicates was part-granted to the applicant. The HSE clarified with this Office that Record 5 itself was not released to the applicant but that some details of its content were included in the decision letter and internal review decision letter, namely that the neurosurgeon whose name is sought is a Consultant Neurosurgeon in an NHS Trust in London, is qualified in neurosurgery and pre-hospital care and has extensive experience in neurotrauma and traumatic brain injury. It was in this context that the HSE described the records as “part-granted”. This review is concerned solely with whether the HSE was justified, under section 37(1) of the FOI Act, in refusing to grant access to the name of the neurosurgeon in question.
Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request, or any belief or opinion of the public body as to what are the reasons for the request, shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.
Secondly, it is important to note that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
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 concerned would involve the disclosure of personal information relating to an individual other than the requester.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, 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. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of (a) or (b), is personal information for the purposes of the Act, including (iii) information relating to the employment or employment history of the individual, and (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.
Certain information is excluded from the definition of personal information, including the name of an individual who is or was a service provider. The Act defines “service provider” as a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services.
In its submissions to this Office, the HSE explained that the IAP, when carrying out its work, had requested access to subject matter experts in case there was a need for external and specific advice. It was in this context that the neurosurgeon was asked would he/she be available to provide advice as needed. The neurosurgeon agreed to this on a voluntary basis. He/she did not sign any formal agreement or contract in relation to either being available or for any information exchanged with the IAP. He/she is not employed by the HSE or any of its service providers, nor did he/she seek or receive any payment or gratuity. The neurosurgeon does not wish his/her name to be released.
I am satisfied that the neurosurgeon’s name comprises personal information in accordance with section 2 of the FOI Act and that section 37(1) therefore applies. However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section.
Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that no such circumstances arise in this case and that section 37(2) does not 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 information would be to the benefit of the person to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.
As to whether section 37(5)(a) applies, the question I must consider is whether the public interest in releasing the neurosurgeon’s name outweighs, on balance, the public interest in protecting his/her privacy rights. In considering this matter, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] 1 I.R. 729, [2011] IESC 26) (“the Rotunda case”). It is noted that a public interest (“a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law”) should be distinguished from a private interest.
On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have also had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.
While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.
Both the language of section 37 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). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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.
The applicant did not make a submission to this Office. However, I note that in his correspondence with the HSE, he argued that the advice provided by the neurosurgeon has had significant implications on patient safety in Ireland.
In its submissions, the HSE stated that the IAP’s recommendation on the preferred location of the Major Trauma Centre for the Central Trauma Network and the Dublin Trauma Unit(s) was reached following significant deliberations and using a Designation Framework that was developed following extensive consultation. The Designation Framework provided many factors for consideration and the recommendation was not based solely on any one specialist service e.g. neurosurgery. Neither was it based solely on the advice of any subject matter expert, and nor were the views of any subject matter expert contained in the final report of the IAP (which was released in full to the applicant). Furthermore, the HSE stated that subject matter experts were not privy to the deliberations of the IAP.
It seems to me that by granting access to summary information about the qualifications and experience of the neurosurgeon, the HSE has sought to strike a balance of providing the applicant with information sought by him while also seeking to protect the privacy rights of a third party. I have no reason not to accept the explanation provided by the HSE as to the role played by the neurosurgeon in the IAP’s deliberations and recommendations. It is clear that the recommendations of the IAP, which were accepted by the HSE, are very significant in terms of changing how trauma services will be delivered in Ireland going forward. However, there is no evidence to suggest that this one neurosurgeon whose name is sought had a significant or disproportionate influence on the IAP’s decision.
Having carefully considered the matter, and given the strong public interest in protecting the right to privacy, I find no relevant public interest in granting access to the neurosurgeon’s name that, on balance, outweighs the right to privacy of this individual.
In conclusion, therefore, I find that the HSE was justified in its decision to refuse access to personal information contained in the record at issue, under section 37(1) of the Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse access, under section 37(1) of the Act, to the name of the neurosurgeon in question.
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.
Stephen Rafferty
Senior Investigator