Cinneadh
Mr. G and The Health Service Executive
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-151168-G9L7K7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-151168-G9L7K7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the HSE was justified in refusing access to submissions and correspondence from the HSE to this Office in relation to Case No. OIC-142155-F5H2T under sections 29(1)(a), 30(1)(a) and 37(1) of the FOI Act
16 April 2025
By way of background, the applicant made a complaint to the HSE and to the Data Protection Commission (DPC) concerning an alleged data breach relating to his personal information. I understand that his request for records in this case and in other related cases stems from matters arising on foot of his data protection complaints.
In a request dated 2 March 2024, the applicant sought access to submissions and correspondence from the HSE to this Office in relation to a previous OIC case concerning the applicant and the HSE (Case No. OIC-142155-F5H2T2). In a decision dated 19 April 2024, the HSE identified 25 pages relating to the applicant’s request. It granted access to pages 1-13 and refused access to pages 14-25 under sections 29(1)(a) (deliberations) and 30(1)(a) (functions and negotiations) of the FOI Act. The applicant sought an internal review and on 23 July 2024, the HSE affirmed its original decision. On 12 August 2024, the applicant applied to this Office for a review of the HSE’s decision.
During the course of the review, I notified the applicant that I considered section 37 of the FOI Act to be of relevance and invited him to comment. He made verbal submissions in response, which will be considered below.
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 applicant’s comments in his correspondence with this Office and to the submissions made by the FOI body in support of its decision. I have also had regard to the contents of the relevant records identified by the HSE. I have decided to conclude this review by way of a formal, binding decision.
The records schedules provided by the HSE listed the records by page numbers, rather than by whole documents. For ease of reference, I shall use the same numbering system.
During the course of this review, I asked the HSE to provide submissions in relation to pages 1-4. Although these records were listed as released in full, staff members’ names and email addresses had been withheld from pages 1-4. In its response, the HSE stated that these records had been provided by the applicant in their redacted format. I am satisfied, accordingly, that the information withheld from these records does not come within the scope of this review.
Having regard to the above, the scope of this review solely concerns whether the HSE was justified in refusing access to pages 14-25 on the basis of sections 29(1)(a), 30(1)(a) and 37(1) of the FOI Act.
I wish to explain that a review by this Office is regarded as “de novo”, which essentially means that the review is based on the circumstances and the law as they pertain at the time of my decision and is not confined to the basis upon which the FOI body reached its decision. In light of the de novo nature of our reviews, I consider it appropriate to consider
the applicability of section 37 of the FOI Act to certain information contained in the records, notwithstanding the fact that the HSE did not rely on those provisions as a ground for refusing the particular records concerned.
During the course of this review, the applicant raised concerns about the appropriateness of the HSE decision makers who made the decisions on his requests, as he considered there to be a significant conflict of interest arising. As the applicant is aware, this Office has previously accepted that it is appropriate for subject matter experts to be designated FOI decision makers. Furthermore, while section 21(3) provides that an internal reviewer must be of a higher grade than the original decision maker, the FOI Act does not place any other qualifications on what staff may be delegated FOI decision makers. Indeed, in many circumstances it may be most efficient for staff members involved in a particular area to be involved in the processing of an FOI request related to their work.
Furthermore, it is important to note, as a preliminary matter, that 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.
The applicant also stated that that his privacy had been breached by the HSE and that this had caused him great distress. He said that he had been attempting to clarify how this had transpired since the alleged data breach first occurred. I understand that he has made a number of FOI requests to the HSE seeking records with this aim.
It is also important to note that section 13(4) of the FOI Act 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. Therefore, while certain provisions of the FOI Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
The records at issue are a request from this Office to the HSE for submissions (pages 14-19), emails between HSE and OIC (page 20), and an email to this Office from the HSE including its submission (pages 21-25) in Case No. OIC-142155-F5H2T2. All were withheld by the HSE under sections 29(1)(a) and 30(1)(a). The previous case concerned a request for access to records relating to specific communication between a named physician and the HSE in relation to the applicant’s Medical Council complaint about the physician. In the circumstances, I consider section 37 to be relevant. Section 37 is a mandatory exemption, and as such, I will consider its application in the first instance.
Section 37 provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual other than the requester. For the purposes of the FOI 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 Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. These categories include (iii) information relating to the employment or employment history of the individual; (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, (xiv) the views or opinions of another person about the individual.
Certain information is excluded from the definition of personal information, as set out in section 2 of the FOI Act. Paragraph (I) provides that where the individual is or was a staff member, the definition does not include the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of those functions.
However, paragraph (I) does not provide for the exclusion of all information relating to staff of an FOI body. The Commissioner takes the view that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a public servant in the context of the particular position held or any records created by the public servant while carrying out his or her functions. The exclusion to the definition of personal information at Paragraph (I) does not deprive staff members in FOI bodies of the right to privacy generally.
As noted above, the HSE did not rely on section 37 to refuse access to the records sought. In my request for submissions to the HSE, I noted that section 37 might be relevant and indicated that if it wished to rely on this exemption, it should address it in its submissions. The HSE made no arguments in relation to section 37 in its response.
As also noted above, I informed the applicant of my view that section 37 was relevant and invited him to comment. In response, he indicated that, in his view, the names of and references to HSE staff members should not comprise their personal information under the FOI Act, even where the names are mentioned in the context of a complaint about the staff member in question. He also argued that some of the records already released by the HSE in response to his requests and/or on foot of a decision by this Office contain the names and/or other details of staff members and other third parties. His view was that this had essentially put this information in the public domain.
The records at issue concern a review that was carried out by this Office in relation to the HSE’s decision to refuse access to additional records relating to a named physician, about whom the applicant had made a complaint. I understand that this individual was working for the HSE, but that this changed at some point. Having carefully considered the matter, I am satisfied that the records contain limited information which relates to an identifiable individual, who was at a HSE staff member at some stage. I am also satisfied that this information does not concern a function of the person’s employment; rather, I find that it relates to allegations against the individual in the context of performing their functions, or in the context of the individual as a private individual. Accordingly, I find that paragraph (I) does not apply and that the name, location and employment details of the third party who was the subject of a complaint by the applicant on pages 17, 19, 21, 22, 23, 24 and 25 comprise personal information under section 37(1) of the FOI Act.
As section 37(1) of the FOI Act is subject to the other provisions of the section, I must proceed to consider whether any of those other provisions serve to disapply section 37(1) in respect of any or all of the above information. Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply, as follows:
“(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 those circumstances 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 to whom the information relates. I am satisfied that the release of the information at issue would not be to the benefit of the individual 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 of privacy of the individual to whom the information relates.
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 FOI 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 records 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 release of the records, i.e. insofar 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.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the FOI 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 inThe 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 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.
The HSE made no public interest arguments in relation to section 37, although in its submissions to this Office, it stated that there was a public interest in preserving the “confidentiality in relation to personal matters of third parties that may be discussed in the records”. This might be construed as an argument that the public interest did not favour the release of the information concerned, although the HSE did not address this further.
As noted above, the applicant stated that the matters at hand had caused him great distress and that he had been attempting to clarify how a HSE staff member had accessed his personal data since the data breach first occurred. He also indicated that there was a significant public interest in openness and transparency about how the HSE carries out its functions in relation to data protection and how it manages the processes involved. He further argued that it was important to hold the HSE to account for its actions in these matters.
While the applicant’s arguments generally relate to his own interactions with the HSE and could be taken as a private interest, I accept that there is a public interest in knowing how the HSE manages personal medical records and in how it carries out its functions under the Data Protection Act 2018.
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 and 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 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 limited information at issue concerns references to a named individual who had been the subject of a complaint by applicant, including his name, his location during the time in question and details relating to his employment history. As noted above, I accept that there is a public interest in ensuring that the HSE is adequately carrying out its functions under Data Protection legislation. Having said that, it seems to me that the release of the personal information in question would provide quite limited information on the HSE’s role in these matters. On the other hand, the release of the particular information I have identified above as falling within section 37(1) of the FOI Act, would reveal that the individual had been the subject of a complaint to a regulatory body, as well as details of his employment and where he had resided at a particular time. These matters seem to me to be of an inherently private and sensitive nature and I must regard their release as being effectively, or at least potentially, to the world at large.
Furthermore, while I have noted the applicant’s arguments concerning the information already released in this and other related cases, this Office takes the view that the fact that a requester may be aware of the nature of the information or may have even provided some or all of the information to the body in question does not mean that it cannot be regarded as personal information relating to a third party for the purposes of the FOI Act. Similarly, the Commissioner also takes the view that it is not appropriate for this Office to direct the release of exempt information simply because an FOI body has previously released similar or the same information under FOI.
Having considered the matter, and bearing in mind the strong public interest in protecting the right to privacy, I do not accept that the public interest in releasing this limited information outweighs, on balance, the privacy rights of the relevant third party. In particular, I am not satisfied that any sufficiently 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 to this information.
Accordingly, I find that section 37(1) applies to the name, location and employment details of the third party who was the subject of a complaint by the applicant on pages 17, 19, 21, 22, 23 and 24.
In the interest of completeness, however, I am satisfied that the names and references to other staff members of the HSE who are listed in the records do not constitute personal information by virtue of the exclusion to the definition at section 2 of the FOI Act. Such individuals hold a position as a member of staff of an FOI body and their names or information relating to their position or anything written or recorded by the individual in the course of and for the purpose of the performance of their functions is excluded from the definition of personal information. Nor has the HSE argued that it applies. Accordingly, I find that section 37(1) does not apply to exempt such information. I will now go on to consider sections 29 and 30 in relation to the remaining information contained in the records at issue, other than that which I have found to be exempt under section 37.
Section 29 provides for the refusal of a request if (a) the record concerned contains matter relating to the deliberative process of an FOI body, including opinions, advice, recommendations and the results of consultations considered by the body for the purpose of those processes, and (b) the body considers that the granting of the request would be contrary to the public interest.
These are two independent requirements and the fact that the first is met carries no presumption that the second is met. Furthermore, the public interest test at section 29(1)(b) is a strong test. Any arguments against release should be supported by the facts of the case and it should be shown how release of the records would be contrary to the public interest.
In order for section 29(1)(a) to apply, the records must contain matter relating to the “deliberative process” of an FOI body. An FOI body relying on this exemption should identify both the deliberative process concerned and any matter in particular which relates to those processes.
A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action. The fact that a deliberative process exists and is ongoing does not mean that the exemption automatically applies without consideration of all the provisions of section 29. Equally, the fact that a deliberative process is at an end does not mean that the exemption can no longer apply.
As noted above, the records comprise a request to the HSE from this Office for submissions in relation to OIC Case No. OIC-142155-F5H2T, email correspondence between the HSE and this Office clarifying matters and the HSE’s submissions in response.
In its original decision, the HSE stated that the deliberative process concerned was that of both the HSE and of this Office in arriving at a decision on the case under review at the relevant time. In its submissions to this Office, it did not expressly refer to section 29, other than to state that the records were currently part of a deliberative process, which appears to be a reference to an ongoing investigation by the DPC on foot of the applicant’s complaint.
Analysis
I have carefully considered the records in question. I accept that the records concerned relate to a deliberative process – in this case, a review by this Office of the HSE’s decision. It is not clear to me how these records in particular relate to an investigation to the DPC, nor has the HSE explained how this might be the case. I am satisfied that the questions from this Office were designed to gather information with a view to making a decision on the review. I am also satisfied that the HSE’s submissions reflect the matters it deliberated on when making a decision to refuse the applicant’s FOI request in that case.
In the circumstances, I am willing to accept that the records concerned relate to a deliberative process of this Office and/or of the HSE. However, this is not the end of the matter, as I must also consider whether the release of the remaining information contained in the records concerned would be contrary to the public interest.
Section 29(2) – contrary to the public interest
As noted above, the public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the FOI Act, requiring the FOI body to show that the granting of the request would be contrary to the public interest. This Office has previously held that the FOI Act clearly envisaged that there will be cases in which disclosure of the details of an FOI body’s deliberations whether before or, in some cases, after a decision based on those deliberations has been made would be against the public interest. However, this is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 should be substantiated and supported by the facts of the case. An FOI body should show how granting access to the particular records would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
In his submissions to this Office, the applicant stated that the HSE’s arguments were “speculative and not supported by concrete evidence of potential harm”. He also argued that the HSE had not demonstrated how the release of the records sought could be contrary to the public interest. In its consideration of the public interest, the HSE stated that there was a public interest in “ensuring accountability and objectivity in the decision-making process”. It also stated that it considered the likelihood that release of the records sought would “negatively affect the review process of this case and future cases”, and that there was a public interest in allowing FOI bodies to “participate in external appeal processes without undue intrusion”.
As noted above, the records at issue in this case concern the processing of an FOI request, the gathering of information and replies to queries in relation to the steps taken to locate records. In my view, these records concern administrative matters as to the arrangements for providing a response, as well as specific details relating to the searches undertaken to locate relevant records in the previous case.
I note the HSE’s arguments concerning the exchange of submissions and I accept that, generally speaking, this Office does not exchange submissions made during the course of a review. In this regard, among other things, submissions made by one or more parties to a review are likely to contain sensitive information that may not be appropriate for disclosure to others. Furthermore, section 25(3) of the FOI Act requires this Office to take all reasonable precautions to prevent the disclosure of information contained in an exempt record or information which if included in a record would cause the record to be an exempt record. However, while it is not the practice of this Office to exchange submissions between parties to a review, we take care to ensure that the parties are notified of material issues arising for consideration.
As noted above, an outline of the HSE’s submissions was put to the applicant for comment in the relevant case. I also note that details of the HSE’s submissions were contained in this Office’s decision in OIC Case No. OIC-142155-F5H2T. I have found certain information contained in the records to be exempt under section 37 above. Having carefully examined the remaining information in the records at issue, and having regard to the level of detail set out in the Investigator’s decision in the relevant case, it is not apparent to me how the release of the remaining information could affect future OIC reviews. Furthermore, while the HSE has asserted that the release of the records sought could cause undue intrusion or negatively affect the review process of a case (which has since been closed), it has not explained how this might arise, having regard to the specific content of the records sought.
In the circumstances of this case, I am not satisfied that the HSE has adequately demonstrated that the release of the records sought in this case would be contrary to the public interest. Accordingly, I find that the HSE was not justified in refusing access to the remaining information in the records sought on the basis of section 29 of the FOI Act.
Factual information
The relevant parts of section 29(2) provide that section 29(1) does not apply if and in so far as the record contains any or all of the following:
“(a) matter such as rules, procedures, guidelines, interpretations and precedents used, or intended to be used, by an FOI body for the purpose of making decisions, determinations or recommendations;
(b) factual Information;
(c) the reasons for the making of a decision by an FOI body;”
In his submission to this Office, the applicant argued that the records sought contain information of a factual nature which should be disclosed. His position was that the records comprise factual information about an FOI request made to the HSE and a review being carried out by the OIC. As noted above, the records at issue contain questions and responses regarding the steps taken by the HSE to locate relevant records in the previous case.
While it is not relevant, as I have already found section 29(1)(a) not to apply in this case, I should add that, in any event, the information in the records at issue which describes the HSE's actions taken in relation to searching for records is, in my view, factual information. Pursuant to section 29(2)(b), I also find that section 29(1) cannot apply to the relevant parts of those records.
Section 30(1)(a) provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Where an FOI body relies on section 30(1)(a), it should identify the potential harm in relation to the relevant function specified in the paragraph that might arise from disclosure. Having identified that harm, it should consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the record could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record and the relevant facts and circumstances of the case. Section 30(1) is also subject to a public interest test under section 30(2).
In its original decision, the HSE identified this Office’s (at the time) ongoing review of its decision in the previous case as an investigation which fell under section 30(1)(a). It stated that at the relevant time, there were ongoing communications between the HSE and this Office so that the Investigator could be “fully informed about the case… and ultimately arrive at the correct decision”. The HSE argued that it was imperative that such correspondence be “thorough and candid”. It noted that while this Office may notify an applicant of an FOI body’s position on aspects of a particular case, that it had “never been common practice” to release copies of correspondence between this Office and an FOI body during a review to a third party. The HSE argued that release of such records, effectively to the word at large, could reasonably be expected to “prejudice an ongoing investigation”. It also stated that submissions “tend to contain sensitive information that may be deemed unsuitable for disclosure,” even after this Office’s review was completed. It concluded by stating that the release of the records “at this stage” would be inappropriate.
The HSE made no comments as to the application of section 30 in its internal review decision. In my letter to the HSE seeking submissions, I asked it to explain its position regarding “sensitive information” which would not be suitable for disclosure even after this Office’s decision issued in the previous case, having regard to the specific records at issue. In its response, it referred to the background of the previous case which concerned an alleged data breach. It stated that the alleged breach was the subject of a separate complaint to the DPC, but it did not elaborate further.
I also asked the HSE to comment on the fact that this Office’s decision in the previous case has since issued and the case is closed. In its response, it stated that while it accepted that this Office’s decision had issued, that the data breach was subject to an ongoing investigation by the DPC. It stated that the release of the records concerned to the world at large could “quite reasonably be expected to prejudice” the DPC’s ongoing investigation. In its submissions to this Office in relation to section 30, the HSE reiterated its comments from its original decision, as set out above. In addition, it stated that the applicant had informed the HSE in June 2023 of his intention to submit an FOI request and/or a Subject Access Request for all administrative records and email correspondence in relation to the processing of his FOI requests. The HSE’s position was that this was “at odds with the spirit and ethos of the FOI Act”. This might be construed as a reference to section 15(1)(g), which provides for the refusal of a request on the basis that it was frivolous or vexatious or part of a pattern of manifestly unreasonable requests. However, the HSE did not refuse his request on that basis. Instead, it argued that the records in this case should not be released as release could reasonably be expected to prejudice ongoing or future investigations into the HSE’s decision making processes by the DPC and by this Office. In his submissions to this Office, the applicant noted that this Office’s review in OIC Case No. OIC-142155-F5H2T2 was now complete. He argued that on that basis, the HSE’s reason for refusal was no longer valid and that the records at issue should be released.
Analysis
I accept the HSE’s argument that, in the course of a review by this Office, submissions are generally not shared with the other parties to the review. Moreover, it is noteworthy that the FOI Act does not apply to records held by this Office relating to the performance of our statutory functions. Indeed, I fully accept that the release by this Office of records relating to a review as a matter of course could reasonably be expected to prejudice the effectiveness of our review procedures. Nevertheless, it is also noteworthy that the Oireachtas did not choose to protect records relating to a review as a class when it passed the FOI Act 2014, as was formerly the case in the FOI Acts 1997 & 2003. Under the 2014 Act, any such records held by other FOI bodies are subject to release, unless they are otherwise exempt.
Accordingly, it is not appropriate for an FOI body to seek to refuse access to records relating to a review by this Office as a class. Instead, the body must have regard to the nature and contents of the specific records sought. As noted above, in order to ensure procedural fairness, we notify the relevant parties of material issues that arise in the course of a review and we also reflect the main arguments made by the FOI body (or of any other relevant party) in the body of the decision, to the extent that we can do so without inadvertently disclosing the content of an exempt record.
Having carefully examined the records in question, I note that the review to which they relate was finalised more than six months ago. As noted above, in my consideration of section 29, the HSE’s arguments contained in the records were put to the applicant during the review and are reflected in the final, published decision. I have had close regard to the circumstances of this case, and to the contents of the specific records sought. From a review of the records concerned, it is not clear to me how the release of a request for submissions and the HSE’s response relating to whether adequate searches were carried out in response to a request for access to records could prejudice the effectiveness of a review by this Office which has been completed. Furthermore, I do not accept that the HSE has demonstrated how the release of the records sought would prejudice the effectiveness of future investigations or inquiries conducted by this Office (or by or on behalf of the DPC), or that it would prejudice the procedures or methods employed for the conduct thereof. Nor is the possibility of prejudice evident to me from an examination of the records themselves.
Having carefully considered matters, I find that the HSE was not justified in refusing access to the remaining information under section 30(1)(a) of the FOI Act.
In the interests of clarity, I am directing the release of pages 14-25, subject to the redaction of the following information: the name of the third party individual, his location, his position and all references to his previous and current employment on pages 17, 19, 21, 22, 23, 24 and 25.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE’s decision. I find that section 37 applies to certain information relating to a third party individual under section 37(1) of the FOI Act and that the public interest, on balance, does not favour its release. I annul the HSE’s decision to refuse access to the remaining information in the records under sections 29 and 30 and direct its release.
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
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Sandra Murdiff
Investigator