Decision
Ms X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-148484-S0G5X9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-148484-S0G5X9
Published on
14 January 2025
In a request dated 26 February 2024, the applicant sought access to all information relating to her that was included in a forensic psychiatric assessment carried out of her adult son. As the HSE failed to issue a decision on the request within the statutory timeframe, the applicant sought an internal review of the deemed refusal of her request on 27 Marcy 2024. On 30 April 2024, the HSE refused the request under section 37 of the FOI Act, following which the applicant applied to this Office for a review of the HSE’s decision.
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 between the applicant and the HSE as set out above and to the communications between this Office and both parties on the matter. I have also had regard to the contents of the record at issue. I have decided to conclude this review by way of a formal, binding decision.
The scope of this review is concerned solely with whether the HSE was justified in refusing, under section 37 of the FOI Act, the applicant’s request for all information relating to her included in a forensic psychiatric assessment carried out of her son.
At the outset, while I acknowledge the applicant’s request involves the sensitive issue of her son being in receipt of mental health treatment under the remit of the HSE, and the severe toll the situation must be having on her and their wider family, it is important to note that this Office is unable 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 conducting this review, I am confined to considering whether the HSE was justified in refusing access to the information at issue under the provisions of the FOI Act.
Secondly, section 18(1) of the FOI Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading, section 18(2) refers. This Office takes the view that neither the definition of a record under section 2 of the Act, nor the provisions of section 18, envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or ‘dissecting’ of records to such an extent.
Thirdly, while I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the redacted information at issue is somewhat limited.
The record
The record comprises a psychiatric forensic assessment of the applicant’s son. Among other things, it contains details of the sources upon which the forensic assessment was based, details of interviews with the treating clinician team, the applicant in the context of her son’s medical treatment and care, and with the applicant’s son, details of the consultant forensic psychiatrist’s diagnosis, and treatment and care recommendations made.
Section 37(1)
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, a FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. 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 / individuals other than the requester. This is commonly known as ‘joint personal information’.
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 the 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 the definition provided for under section 2, constitute personal information. These categories include information relating to the educational, medical, psychiatric or psychological history of the individual.
Having regard to the nature of the record at issue and its contents as described above, I am satisfied that all of the information in the record comprises personal information relating to the applicant’s son. 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 her son. Where the information concerns the applicant, it is intertwined with personal information relating to her son, his treatment status and care. Having regard to the contents of the record, it is not feasible, in my view, to separate the applicant’s personal information from that of her son. I have taken account of section 18 of the FOI Act as referred to earlier in this decision. I am satisfied that extracting the occasional sentence or word is not practicable. I find that section 37(1) applies to all of the information at issue. 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)
Section 37(2) of the Act 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 none of the circumstances set out in section 37(2) apply in this case. With regard to the circumstance provided for in section 37(2)(e), the applicant said in her submissions to this Office that she was seeking the information to avoid any risk to her safety.
This Office takes the view that the test to be met in section 37(2)(e) is a high one. The risk to life or health must be serious and must be imminent. This means that the degree of danger must be grave and the danger must be impending or close at hand. It must also be shown that disclosure of the information is required in order to avoid such harm. A clear link must therefore be established showing that disclosure of the information is necessary for such purposes. The requirements of the provision are not met where disclosure would merely be of assistance to an individual or an individual's mental health, for example, by giving him or her an understanding or knowledge of an issue which is of great concern to them.
In its submissions, the HSE said the clinician team treating the applicant’s son confirmed that the release of the information at issue would not avoid a serious and imminent danger to the life or health of any individual. While I believe I am constrained by the provisions of section 25(3) from providing a fuller explanation, I can say that having considered the submissions of the parties and the contents of the record at issue, it is not apparent to me how the release of the information in the record might be necessary in order to avoid a serious and imminent danger to the life or health of the applicant. I find that section 37(2)(e) does not apply.
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. No argument has been made that subsection (b) applies in this case and I am satisfied that it does not.
Section 37(5)(a)
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, 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 the 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 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 comments of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner and Ors. [2020] IESC 57 (‘the eNet judgment’). 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.
In its submissions, the HSE said that the right to privacy of the applicant’s son to whom the information relates is a significant public interest factor against release. It said that in light of the inherently sensitive nature of the information concerned, it is not in the public interest for the information sought to be released.
As I have indicated above, in her correspondence with this Office the applicant said she is concerned that her own personal safety is at risk and that the release of the record might prevent any such risk towards her. While this is, in effect, a private interest in seeking access to the information at issue, it seems to me to be reflective of a wider public interest in ensuring that the family members of people with serious mental health difficulties and, indeed, the wider public, are made aware of any potential risks to their safety. In terms of the information in the record that relates jointly to the applicant and her son, I accept that there is also a public interest in individuals being aware of the nature of the information recorded in records held by FOI bodies that relates to them.
It is not apparent to me that the release of the record at issue in this case would serve the public interest in raising awareness of potential safety risks to any significant degree. Moreover, the information in the record that relates to the applicant does not solely relate to the applicant. Rather, it is joint personal information relating to the applicant and her son and is concerned with her son’s care and treatment. In any event, any public interests that might serve to support the release of the information must be balanced against the privacy rights of the individual concerned. 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 it clear that the release of records under Freedom of Information must be consistent with the right to privacy. It is also worth noting that the right to privacy has a constitutional dimension, as an unenumerated personal right. 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. 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).
Again, while I believe myself to be constrained by section 25(3) of the Act from providing a fuller explanation for my findings, I can say, however, that the information in the record at issue in this case is of an inherently private and sensitive nature. Having regard to the nature of the information at issue and to the fact that the release of the record must be regarded as being effectively, or at least potentially, to the world at large, it seems to me that the public interests in releasing the record should not be at the expense of the privacy rights of the individual concerned. Accordingly, in the circumstances of this case, while I have great sympathy for the applicant, I do not accept that the public interest in releasing the record outweighs, on balance, the privacy rights of the third party individual concerned. I find, therefore, that section 37(5)(a) does not apply. Accordingly, I find that the HSE was justified in refusing access to the record sought on the basis of section 37 of the FOI Act.
Finally, while it can form no part of my decision, the applicant may care to note that in its submissions to this Office, the HSE said it will offer access to the record at issue to a healthcare professional, with expertise in the subject matter, nominated by the applicant in-line with section 37(4) of the FOI Act if she requests it to do so.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision to refuse, under section 37(1) of the FOI Act, the applicant’s request for all information relating to her included in her son’s forensic psychiatric assessment.
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