Decision
Ms. X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-154859-D6D2D2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-154859-D6D2D2
Published on
Whether the HSE was justified, under section 37(1) of the FOI Act, in refusing access to a complaint relating to the applicant and the care of her parents
4 April 2025
In a request dated 3 April 2024, the applicant sought a copy of a complaint made to the HSE relating to her and the care of her parents. On 24 April 2024, the HSE refused the request under section 35(1)(a) and 30(1)(a) of the FOI Act. On 1 May 2024, the applicant sought an internal review of the HSE’s original decision. She said that specific sections of the complaint were already publicly disclosed during a family meeting with the HSE and that access to the complaint is crucial to allow her to address the allegations made against her and to ensure her parents get the necessary care they need.
On 20 June 2024, the HSE affirmed its decision to refuse access to the record sought, but varied the basis for its decision by refusing the record under section 37(1) of the FOI Act on the basis that it contains personal information of other individuals. On 20 December 2024, the applicant sought a review from this Office of the HSE’s decision.
During the course of this review, the Investigating Officer provided the applicant with details of the HSE’s submissions wherein it outlined its reasons for refusing the applicant request under section 37 of the FOI Act. The Investigating Officer invited the applicant to make submissions on 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, including the submissions made by both parties. I have also examined the record at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the HSE was justified, under section 37(1) of the FOI Act, in refusing access to the complaint made to the HSE.
Before I address the substantive issues arising, I would like to make a number of preliminary comments. Firstly, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the record at issue, and its content, is limited.
Secondly, section 18 of the FOI Act provides that, if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. 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.
Thirdly, it is also important to note when a records is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the use to which released records may be put.
Finally, in her submissions to this Office the applicant made a number of comments about how the Adult Safeguarding Team (AST) within the HSE handled the complaint made about her and about its practices in general. As the Investigating Officer explained to the applicant, 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. While it is not a matter for this Office, the HSE said that the applicant has submitted similar concerns through the Safeguarding Department and that these will be addressed under the appropriate complaints process.
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, including personal information relating to a deceased individual. 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). Essentially, this means that if personal information relating to the requester is inextricably linked to personal information relating to other parties, then section 37(1) applies to all of the information, regardless of the fact that it also relates to the requester.
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. Section 2 of the Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. These categories include (i) information relating to the educational, medical, psychiatric or psychological history of the individual, (xii) the name of the individual 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, and (xiv) the views or opinions of another person about the individual.
In its submissions to this Office, the HSE stated that the record at issue contains private and sensitive information about third parties, including information relating to health and personal matters. The HSE stated that there is no evidence within the record to indicate that the persons, who are the subject matter of the record have consented to its release. The HSE stated that it was also a consideration that information within the record could potentially be misused and lead to negative consequences for the third parties.
I note the applicant said that the record was read aloud during a meeting in which she was in attendance with third parties, and as a result that she is aware of the contents of the record. However, the fact that the applicant may be aware of the content of the record does not serve to override the protection afforded in section 37 of the FOI Act to personal information of other parties.
I have carefully examined the record at issue. While I am constrained by the requirements of section 25(3) in the description I can give of the information contained in the record, I can say that the record in question is an email sent to the HSE Safeguarding team about allegations of elder care abuse. The record contains details about the care of the applicant’s parents and includes the opinions and views of individuals other than the applicant. The record also contains information relating to the applicant.
Having regard to the nature of the record at issue and its contents as described above, I am satisfied that the information in the record comprises personal information relating to other parties. I am also satisfied that some of the information in the record can properly be described as joint personal information relating to the applicant and other individuals. Where the information concerns the applicant, it is intertwined with personal information relating to those other individuals. Having regard to the content of the record, it is not feasible, in my view, to separate information relating to the applicant from that of those other parties. I have taken account of section 18 of the FOI Act as referred to above and I am satisfied that it is not practicable to separate the personal information relating to the applicant from the personal information of the other parties referred to in the record. In the circumstances, I find that section 37(1) applies to all of the information contained in the record. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37, which I will consider below.
Section 37(2) of the FOI Act sets out circumstances in which section 37(1) does not apply. I am satisfied that none of the circumstances set out in section 37(2) arise in this case. 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(s) to whom the information relates. I am satisfied that the release of the record in question would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.
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 individuals to whom the information relates.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. Firstly, 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 information 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 the release of records, i.e. in so far 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 its submissions, the HSE stated that the information contained in the record is private and highly sensitive information about third parties. It said that although factors such as transparency and accountability were necessary to consider in determining whether the information requested be released or not, the HSE did not believe these public interest factors were strongly present to sway the decision in favour of the release of the information. The HSE said that it considered it important to protect the valuable safeguarding functions in the interest of the relevant third parties and the wider public in respect of vulnerable persons in our society. It said that it does not consider the provision of such information is in the wider public interest as it will prevent persons from reporting their concerns if they thought such information could be released under the FOI Act.
The HSE stated that in consideration of section 37(5)(a) of the Act it is required to distinguish between a private interest from a true public interest and that the HSE is of the opinion that the applicant’s request amounts to a private interest. The HSE said that when considering section 37(5)(a) in this case it was of the opinion that the privacy rights could not be set aside due to potential damage to the relevant third parties. The HSE stated that the information as contained within the record is in the main, personal information of persons other that the applicant. It stated that information within the record is interlinked with that of the applicant and that it is not possible to dissect same nor is there a requirement to do so in line with section 18 of the Act.
In her application and submissions to this Office, the applicant said that the complaint to the HSE contained false information and that access to the record is necessary to refute this information. She said that the actions of the Adult Safeguarding Team (AST) have caused significant distress to her family and undermined their stated commitment to fairness and impartiality and to protect elderly and vulnerable people against abuse. She said transparency, evidence-based assessments, and accountability are essential to prevent unjust outcomes and protect vulnerable individuals. The applicant said it is in the public interest to review and improve AST practices to ensure transparency, accountability and fairness. The applicant said that section 37 of the FOI Act is designed to protect third-party personal data, not false allegations that influenced a safeguarding decision against her. The applicant also said that the HSE could not rely on section 37 of the Act to refuse access to the record, as the record was read aloud during a meeting attended by the applicant and a number of third parties. The applicant contends that release of the record is in the public interest as failure to fact check information within the record would undermine public trust and pose a serious risk to the public. The applicant also made a number of other comments in her submissions to this Office. While I have not outlined those submissions in full here, I have had regard to them for the purpose of this review.
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 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.
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 of 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. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.
As outlined above the record at issue contains sensitive personal information regarding the care of the applicant’s parents. While I note that the applicant states that she has heard the contents of the record, as the record is of an inherently private and sensitive nature and I must regard its release as being effectively, or at least potentially, to the world at large.
In regard to the applicant’s comments about the actions of the HSE’s Safeguarding Team and the need for greater transparency and accountability of the HSE’s actions in handling the safeguarding complaint it received, I note that the record in question does not offer any insight into the actions of the Safeguarding Team or how the HSE dealt with the complaint. Having considered the matter carefully, 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 record at issue outweighs, on balance, the privacy rights of the relevant third parties. In particular, I am not satisfied that any sufficient specific, cogent and fact based reason to tip the balance in favour of disclosure of the information at issue exists in this case. I find, therefore, that section 37(5)(a) does not apply in this instance. Accordingly, I find that the HSE was justified in refusing access to 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 HSE’s decision to refuse the applicant’s request 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