Decision
Ms X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: 130274
Published on
From Office of the Information Commissioner (OIC)
Case number: 130274
Published on
Whether the HSE has justified its decision to refuse to release certain social work records relating to the applicant and her daughter.
4 April 2014
On 10 June 2013, the applicant made an FOI request for a copy of the case notes from a North Lee Social Work file. The HSE, in its decision of 18 June 2013, granted partial access to some of the records sought and withheld others, in whole or in part, on the grounds that they were exempt from release under section 28(1) of the FOI Act. The applicant sought an internal review of the HSE's decision on 4 September 2013. The HSE issued its internal review decision on 27 September 2013. The internal review decision upheld the original decision and in addition claimed a further exemption of some of the records under section 26(1)(a) of the Act.
On 5 November 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 6 March 2014 , by Ms. Anne O'Reilly, Investigator in this Office. A response was received from the applicant on 12 March 2014 and I have now 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 and parts of records from the applicant.
It is relevant to note, as a preliminary matter, that section 43(3) of the FOI Act requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. It is also relevant to be aware that the Courts have found that the release of a record under the FOI Act is akin to its release to the world at large.
As stated above, records were withheld by the HSE under both sections 26 and 28 of the FOI Act. Some records/part records were withheld under section 26, and these records consist of conversations/contacts between the social work staff and certain third parties, and contain information about the applicant and those third parties. Given the content of those records and parts of records, in my view section 28(5)(B) is the more appropriate exemption to consider in respect of the records in question.
The balance of the withheld portions of the 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.
Sections 28(1)
As outlined in Ms O'Reilly's preliminary views letter, section 28(1) of the FOI Act provides, subject to other provisions of section 28, that a public body shall refuse a request for a record where granting it would "involve the disclosure of personal information about an identifiable individual ". Having examined the records, I am satisfied that the information withheld under this provision is personal to people other than the applicant. Accordingly, I find the withheld details to be exempt under section 28(1) of the FOI Act.
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.
The applicant in her response to Ms.O'Reilly's preliminary views letter requested that this Office would contact the third parties involved in order to seek their permission to release their personal information to the applicant. I do not consider that this is an appropriate course of action for this Office to take in the circumstances of this case, and, accordingly, in the absence of such consent I find that section 28(2)(b) does not apply.
Section 28(5)
Section 28(5) provides that a record, which is otherwise exempt under section 28(1) or 28(5B), 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 conversations/contacts between the social workers and certain third parties, release of which would disclose personal information pertaining both to the requester and to the third parties involved. The requirements of section 43(3) mean that I cannot elaborate further on the information concerned. Having examined them, I am satisfied that the withheld details comprise the personal information of persons other than the applicant, or personal information about the applicant that is inextricably linked to the personal information of other persons ("joint personal information") and that they are therefore exempt in line with the provisions of section 28(5B). I find accordingly.
The applicant has stated that she has gained access to a certain amount of the information withheld by the HSE through other sources and that accordingly section 28(1) does not apply. However, as release of records under the FOI Act is regarded as release to the world at large, and release of the records in question would result in the release of information relating to third parties, I consider the fact that the applicant may be aware of some of the withheld information is not a factor that I can take into account in my decision. I therefore consider that the records in question are exempt in accordance with this 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