Cinneadh
Mr M and Health Services Executive
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: 130073
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: 130073
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the HSE was justified in refusing to release under the provisions of sections 26 or 28 of the FOI Act, certain records relating to the applicant's employment with the HSE.
14 August 2014
The applicant made a request under the FOI Act on 8 January 2013 for his personal information, held by the HSE, his employer, for the period from 1 May 2010 until 8 January 2013. In its original decision on his request, dated 5 February 2013, the HSE released a significant numbers of records. Some records were withheld under section 26(1)(a) of the FOI Act because they were considered by the HSE to be confidential. The applicant submitted an application for an Internal Review of the decision on 1 March 2013. In his request, he objected to the withholding of certain records on confidentiality grounds.
The HSE issued separate decisions on the records covered by the Internal Review -- one in respect of certain of the applicant's HR records, dated 11 March 2013, and the other in respect of other records withheld by the HSE, dated 25 March 2013. In summary, these decisions affirmed the original decisions on the applicant's FOI request. On 21 March 2013, the applicant submitted an application to this Office for a review of the HSE's decisions.
In carrying out my review, I have had regard to correspondence between the HSE and the applicant as set out above; to contacts between this Office and the HSE; to contacts between this Office and the applicant, and, in particular, the 'preliminary views' letter sent to him, dated 7 July 2014, by Mr. Richie Philpott, Investigator in this Office. As no reply has been received to that letter, I have decided to complete this review by issuing a formal binding decision. In doing so, I have also had regard to the provisions of the FOI Act, the contents of the withheld records and, in considering the public interest test in section 28(5), 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 [2011] 1 IR. 729, [2011] IESC 26 (which I will refer to below as "the Rotunda judgment").
While the HSE has contended that the records are exempt in line with the provisions of section 26(1)(a) of the FOI Act, in my opinion it is more appropriate to consider their exemption in the context of section 28 which deals with personal information. Accordingly, the scope of the review is confined to the question of whether the HSE was justified in refusing access to those records withheld as detailed in the schedules attached to the HSE's internal review decision.
Section 28 - personal information
Section 28(1)
Section 28(1) of the FOI Act provides that, subject to other provisions of section 28, a public body shall refuse a request for a record where granting it would "involve the disclosure of personal information" about an identifiable individual. Certain provisions of the FOI Act cover personnel type records held by an employer and some of those relatively complex provisions are relevant here.
Section 2(1) of the FOI Act defines personal information as “information about an identifiable individual that-
(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 a public body on the understanding that it would be treated by it as confidential ". The definition goes on to list 12 specific categories of information which, without prejudice to the generality of (a) and (b) above, are "included" in the definition. Of these, the following categories may apply in the case of the records under review:
"(iii) information relating to the employment or employment history of the individual,
(iv) information relating to the individual in a record failing within section 6 (6) (a),
[...]
(x) 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 public body concerned relates to the individual.
[...]
(xii) the views or opinions of another person about the individual,"
The effect of category (iv) above - which refers to section 6(6)(a) of the FOI Act - is to include the personnel record of a public body employee within the definition of "personal information". Section 6(6)(a) defines a personnel record as:
"a record relating wholly or mainly to one or more of the following, that is to say, the competence or ability of the individual in his or her capacity as a member of the staff of a public body or his or her employment or employment history or an evaluation of the performance of his or her functions generally or a particular such function as such member"
However, section 2 goes on to provide that certain types of information about an individual public body employee are excluded from the definition of "personal information"; it provides that the definition does not include:
"(I) in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, 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 the functions aforesaid,"
Applying this qualification to the circumstances of this case, it is clear that the following do not constitute personal information: the name of the individual in the context of being an employee of the HSE; information regarding the office or functions of that employee within the HSE; the terms upon which the employee holds office or performs a function; records created by that employee in the course, of and for the purpose of, the performance of the functions assigned.
On the other hand, some records sought by the applicant relate to an investigative process and I do not accept that the details of that investigation process insofar as it they relate to members of staff other than the applicant could be characterised as being for the purpose of the performance of any employee's functions. In case number 080050 Philip Boucher-Hayes, RTÉ and County Council X (decision date 19 August 2008; available on this Office's website,www.oic.ie ), the Commissioner's position on certain types of personnel records is set out in more detail. Accordingly, I consider that the qualification on the definition of "personal information" cited above does not apply to the type of information sought by the requester.
I am satisfied that the records sought would constitute personal information and that, on the face of it, they would be exempt from release under section 28(1) of the FOI Act.
The withheld material comprises personnel records relating to employees of the HSE including matters investigated in the context of complaint handling and disciplinary procedures. In some instances, the records disclose the joint personal information of the applicant and other persons. Section 28(5B) of the FOI Act provides that where a record contains joint personal information, that is, personal information about two or more individuals, third party information must, subject to the other provisions of section 28, remain protected. It is necessary, therefore, to consider the other provisions of section 28 under which personal information of parties other than the requester may be released. The exceptions set out in sections 28(2) and 28(5) are potentially relevant and remain to be examined.
Section 28(2)
Section 28(2) provides that Section 28(1) does not apply in certain circumstances. 28(2)(a) covers information relating to the requester concerned. In this regard I am satisfied that the records contain "joint personal information" and the personal information relating to the applicant is intertwined with that of one or more other persons (third parties).Thus, section 28(5B) applies as explained above. I am satisfied that the other provisions of section 28(2) are not relevant because the third parties to whom the information refers have not given prior consent to the release of the records to the applicant; the information is not of a kind that is available to the general public; it does not belong to a class of information that might be made publicly available; and disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
Therefore, as none of the provisions (b)-(e) in section 28(2) apply in the present case and no argument has been made that they are relevant. I find that section 28(2) does not apply in this case to dis-apply the prohibition on disclosure of personal information in section 28(1).
Section 28(5)
Subsection (5) of section 28 provides that the exemption does not apply -
"Where, as respects a request under section 7 the grant of which would, but for this subsection, fall to be refused under subsection (1), in the opinion of the head concerned, on balance_
(a) 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 aforesaid, the head may, subject to section 29, grant the request."
In the case of section 28(5)(b), this may be disposed of summarily. There is no obvious case, nor has such a case been made, that the release of relevant records to the applicant would be to the benefit of any other persons whose personal information is found in the records. I find therefore that section 28(5)(b) does not apply in this case.
However, it is necessary to consider the public interest test, contained in section 28(5)(a), and to decide whether the public interest served by release of the records outweighs the public interest in respecting the right to privacy of the third parties concerned.
In relation to section 28(5)(a) , in the Rotunda 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 HSE has already released most of the records sought, and has withheld only a small number of records containing personal information concerning HSE staff other than the applicant. While the applicant clearly believes that he requires the full records surrounding allegations made in the context of an investigative process, it is my understanding that any public interest in ensuring fair procedures would have been satisfied though the procedures in the investigation process in that the substance of complaints and other details would have been put to the applicant who would then have an opportunity to refute these as necessary. In any case, I am satisfied that the public interest in the release of the withheld records is not sufficient to outweigh the significant privacy rights of the employees concerned.
I therefore consider that the HSE is justified in its decision to refuse access to those records which I find to be exempt under accordance with sections 28(1) and 28(5B) of the FOI Act. I find accordingly.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby affirm the HSE's refusal to release the records at issue.
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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Elizabeth Dolan
Senior Investigator