Cinneadh
Mr X and Health Service Executive
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-138538-X5N3B1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-138538-X5N3B1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to further records other than those already released on the ground that no further relevant records could be found and in refusing access, under section 37, to certain information contained in a number of the released records
9 April 2024
A previous decision of this Office (numbered OIC-117818-G3N3W0) annulled the HSE’s decision following a request submitted by the applicant and directed it to take a fresh decision in the matter. As part of the previous review, the applicant informed this Office that he was prepared to narrow the scope of his original request to the following:
a. all documentation relating to a specific submission of the HSE to this Office in cases OIC-97608-C3Q2T4 and OIC-97817-N1V0F3;
b. all information relating to internal contacts between a named occupational therapist, and other HSE staff relating to the applicant from February 2021 onwards; and
c. the record mentioned in the OIC decision in cases OIC-97608-C3Q2T4 and OIC-97817-N1V0F3 as referred to above.
The HSE did not issue a decision within the requisite timeframe. On 6 October 2022 the applicant sought an internal review of this deemed refusal. The internal review decision dated 21 November 2022 appeared to indicate that 7 pages of records fell within the scope of the applicant’s request. Access to these records were part-granted to the applicant, with certain information on one page refused on the basis of section 37(1) relating to personal information. With regard to part (c) of the applicant’s amended request, the HSE indicated that section 15(1)(a) applied as no records could be identified.
On 22 May 2023 the applicant appealed the matter to this Office. In the course of correspondence with this Office, the applicant has indicated that he only wishes to appeal the section 15(1)(a) aspect of this case.
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 application for review and to the submissions made by the HSE in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
In the course of the review by this Office, the HSE identified additional documents which were released to the applicant on 16 October 2023. More particularly, the HSE identified a further 63 pages of records as falling within the scope of the applicant’s request and it released these pages in full, with the exception of certain third party personal information on pages 1, 19, 20, 23 and 37 of these records. While the applicant in his appeal indicated that he was not seeking this Office to review the information refused in the original tranche of records on the basis of section 37, he has not make any similar comment with regard to the information refused on pages 1, 19, 20, 23 and 37 of the additional records. I will therefore consider whether the HSE was justified in refusing access to this information on the basis of section 37 as part of my review.
In addition, following receipt of further clarifications from the HSE, the applicant indicated that he was satisfied that he had received the record referred to in part (iii) of his request. The applicant therefore agreed to reduce the scope of his review to records falling within parts (i) and (ii) of his request.
This review is therefore concerned solely with whether the HSE was justified in refusing access to certain information on pages 1, 19, 20, 23 and 37 of the additional records released in the course of the review on the basis of section 37(1) relating to personal information and in refusing access, under section 15(1)(a) of the FOI Act, to further records relevant to parts (i) and (ii) of the applicant’s request, other than those already released, on the ground that no further relevant records exist or can be found.
Before I address the substantive issues arising, I would like to make a number of preliminary comments.
First, as has previously been 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.
In addition, although 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 disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.
Searches – section 15(1)(a)
In his application to this Office, the applicant has argued that further records exist relevant to his request which have not been identified and as such the provisions of section 15(1)(a) are of relevance.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In such cases, the role of this Office is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
During the course of the review, the HSE provided submissions to this Office in which it provided details of the searches carried out for relevant records in all three requests and of its explanation as to why no further relevant records could be found. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here.
The HSE made reference at the outset to the multiple FOI and SAR requests which the applicant had submitted in recent years. It said based on the number of requests, 24 in total, it considers that all reasonable steps have been taken to ensure that all of the records falling within the applicant’s requests have been appropriately identified. It said that thorough searches have been conducted on multiple occasions with personnel being requested to provide records relevant to the scope of the specific requests with particular emphasis on the HSE Personnel specifically listed by the applicant.
With regard to this specific request, the HSE provided details of the specific searches which were conducted, the specific search terms which were used and the specific electronic folders and generic email addresses which were searched. It provided details of the hard copy physical files which were searched. In addition, the HSE provided a list of sixteen staff members who were specifically contacted to see if they held relevant records. As I have already provided this information to the applicant, I do not consider it necessary to repeat it here.
In addition, I also sought details from the HSE with regard to a number of specific issues raised by the applicant. First, I sought further details in relation to what the applicant referred to as a disconnect between the HSE indicating that the email referred to in the decision covering cases OIC-97608-C3Q2T4 and OIC-97817-N1V0F3 now either does not exist or cannot be found. In response the HSE said that owing to the passage of time and the volume of cases processed by its Consumer Affairs unit, the official in question cannot recall the email which is being referred to nor can she find any reference in her original OIC submission which would assist in retrieving this email. However, the official indicated that since the OIC decision in the above cases, the applicant has submitted a Subject Access Request (SAR 3602) for access to all administrative records held by the Consumer Affairs unit relating to the processing of your FOI requests including communications between the Consumer Affairs unit and this Office. The HSE further indicated that while it considers that administrative records which are created as part of HSE submissions to bodies such as this Office would not be considered the applicant’s personal information, in an effort to bring matters to a resolution, all administrative records relating to FOI 25085 (OIC-97608-C3Q2T4) and 25504 (OIC-97817-N1V0F3) were released to the applicant via SAR 3602.
I also sought details from the HSE regarding the reference in the internal review decision to records ‘held by the Cork Mental Health Service’ considering that the applicant’s amended request referred to records ‘held by the HSE’. In response, the HSE said as an organisation it does not have a central IT system nor does the HSE have a central record management system. It said that as is normal practice, on receipt of an FOI request, the applicant’s request was logged to the areas which hold the records i.e. the service areas which provide care and treatment to the applicant. It further said that the request was then processed by the delegated decision maker/internal reviewer for that specific area. In this particular case, the search for records was carried out by the Mental Health Services that fall within the Cork Kerry Community Healthcare (CKCH) areas, North and South Lee. The HSE said that if the applicant wishes to have searches carried out in the wider HSE, he would have to explicitly state which area he was referring to e.g. Cork University Hospital, Primary Care, Safeguarding etc. By way of information, the HSE indicated that the applicant has submitted FOI requests to all of the above named areas.
I also sought details from the HSE regarding the references in the internal review decision to the exemptions relied on in the original decision when in fact no original decision had issued. In response the HSE apologised that the internal review decision letter contained inaccuracies and this has led to confusion for the applicant. It clarified that as no original decision ever issued, any references to exemptions in the original decision are mis-leading and inaccurate. The HSE confirmed that the internal review decision is the only decision that issued in relation to this specific case and therefore, the only exemptions which are applicable are those referenced in the internal review decision.
In addition, I sought details from the HSE regarding the storage of records and their records management practices more generally. In response the HSE said the records which fall within the scope of this request are made up of the following:
a. Clinical File
b. Multi-Disciplinary Team notes for sector team
c. FOI files
d. Occasional emails – kept on individual inbox only and not printed or shared digitally
e. Administrative records
The HSE said the clinical file is in a physical format and it is held at a named primary care centre. It further indicated that there are two types of files; outpatient file and inpatient file. It said the outpatient file is retained at the primary care centre in a records filing room, which is locked and access is only gained via swipe card. It said that the inpatient file is kept at a specific unit in Mercy Hospital Cork in a records filing room in a metal drawer. It added that access is gained via swipe card, and files are checked in and out and signed for.
In addition, it informed me that digital files are kept on a shared drive relevant to the sector they refer to e.g. FOI, Internal Review or OIC requests and will be both digitally filed in a specific folder on a shared drive and a physical folder in a secure area. It said access to the shared drive/folder is via individual passwords. It added that the CRM (Customer Relationship Management) Data Base is known as IPIMS (Interactive Patient Information Management System). It said that one MRN (Medical Record Number) is allocated to the patient. The HSE further said that while a register of files is kept by each Community Mental Health Team sector, at present there is not a unified composite registry of the applicant’s files kept in one location as:
a. The applicant’s outpatient file is kept at the primary care centre;
b. The applicant’s in-patient file is kept at a specific unit in Mercy Hospital;
and
c. all other files such as FOI requests are kept with the Community Mental Health Team Sector relevant to the specific request.
In sum, it is the HSE’s position that following the most additional release of records to the applicant all records relevant to this request have been identified.
Following receipt of the HSE’s submissions as set out above, I forwarded details of the searches undertaken to the applicant. In light of the above clarifications, I informed the applicant of my view that the HSE had, at that stage taken all reasonable steps to ascertain the whereabouts of relevant records. I invited the applicant to make further submissions if he remained of the view that further relevant records should exist.
In response, the applicant queried a number of aspects of the submission made the HSE. First, the applicant queried the HSE’s response regarding the email relating to cases OIC-97608-C3Q2T4 and OIC-97817-N1V0F3 and the fact that this now either does not exist or cannot be found. In particular, the applicant has highlighted the fact that the HSE submissions indicated that its original submission in these cases was reviewed to see if any reference was contained therein which would assist in retrieving the email in question. The applicant has said that this original submission would clearly fall within part (i) of his request and has not been provided as part of this request.
The applicant also referred to the release of records on 16 October 2023 and said that all 63 pages of records are unconnected with this FOI request. The applicant has also argued that the release of records not relevant to his request calls into question the adequacy of the HSE’s searches in this case.
The applicant further highlighted the reference in the HSE’s submissions that as part of the applicant’s SAR request, all administrative records relating to OIC-97608-C3Q2T4 and OIC-97817-N1V0F3 were released to him. The applicant argued that SARs relate only to personal data and citing a SAR would not meet the scope of an FOI request.
With regard to the search words used by the HSE, the applicant said that with the exception of his name, the other terms listed are unrelated to this FOI request and therefore it calls into question the adequacy of the searches undertaken. With regard to the electronic searches undertaken, the applicant queried whether the information provided by the HSE relates to one folder and its sub-folders as opposed to separate email accounts. The applicant also provided a list of three generic accounts of the HSE and named thirteen individual staff members and queried whether the email accounts of these individuals had been searched. The applicant also asked if the email accounts of those who processed his original FOI request as well as his internal review request were searched. The applicant also asked what searches were undertaken of staff members who interacted with this Office on OIC-97608-C3Q2T4 and OIC-97817-N1V0F3. The applicant specifically asked whether searches, using OIC-97608-C3Q2T4 and/or OIC-97817-N1V0F3 as the search terms, were conducted on the mailboxes of three named individuals.
Finally, the applicant referred to the HSE’s reference to his SAR numbered 3602 in response to why no records relevant to the review by this Office in cases OIC-97608-C3Q2T4 and OIC-97817-N1V0F3 had been identified. The applicant said that the HSE did not provide the submission it made to this Office in these cases as part of release of records for SAR3602. The applicant also considers that there is likely to be internal HSE communications regarding the formulation of this submission. The applicant has also indicated that the HSE has not yet finalised its response in SAR3602.
As indicated above, I provided details of the applicant’s comments to the HSE. In response the HSE provided me with further information as follows. First, with regard to the applicant’s contention that the original submission to this Office relating to cases OIC-97608- C3Q2T4 and OIC-97817-N1V0F3 should exist and has not been provided as part of this request, the HSE said the following. The HSE said that given the passage of time the official in question cannot recall what type of submission was made in these cases; i.e. whether a written submission was made or whether it was an exchange of email correspondence with this Office. The official said that whilst she would expect that all emails and/or Word documents should be saved in the electronic folder for each respective case; having reviewed the electronic files there is no submission on file for either of the two cases.
With regard to the applicant’s contention that reference to the release of information to him under a SAR is immaterial for the purposes of the current review under the FOI Act, the HSE said the following. It said that as part of its original submission it had included a copy of the SAR 3602 decision letter. With regard to the applicant’s comments as to why in his SAR numbered 3602, no records relevant to the review by this Office in cases OIC-97608-C3Q2T4 and OIC-97817- N1V0F3 had been identified, the HSE said that this matter remains under review by the DPC.
With regard to the applicant’s contention that the search words utilised by the HSE with regard to part (ii) of his request were not appropriately connected to his amended request, the HSE said the following. It said that all administrative records associated with the two specified FOI requests are held in one location only; i.e. in electronic case files held by the Consumer Affairs Department. The HSE further indicated that access to these records is limited to authorised personnel only; i.e. the Consumer Affairs team. The HSE said that an official examined each of the corresponding electronic folders, for the administrative records associated with both requests, and it said that it is satisfied that all pertinent records were located. The HSE further indicated that given the sheer volume of both FOI and SAR requests submitted by the applicant that it is satisfied that all reasonable searches have been conducted to identify relevant to the applicant’s request.
Following receipt of the details of the searches undertaken by the HSE, the applicant had queried whether the information provided by the HSE in relation to the generic mailboxes searched related to one folder and its sub-folders as opposed to separate email accounts. When I queried this with the HSE said that both the ‘ FOI.South@hse.ie ’ and ‘ DDPO.South@hse.ie ’ were searched for the requested records. It said that these email accounts are the administrative email accounts used by the Consumer Affairs team primarily for processing FOI requests/SARs and managing data breaches. The HSE further indicated that the email account ‘ consumerrelations@hse.ie ’ was not searched as this account was deactivated a number of years ago and officials do not have access to this account any longer.
The applicant has provided a list of nine administrative HSE staff members, not included on the list of sixteen staff members referred to above, and queried whether their email accounts had been searched. In response the HSE said that the Consumer Affairs team uses the two generic email addresses referred to above for the management of FOI matters, amongst other functions. It said that as the applicant’s amended request relates primarily to the administrative records regarding the two FOI requests, it would not be reasonable to expand the search for records beyond those already conducted. It said the Consumer Affairs team is the primary liaison point with this Office. It said the use of a generic mailbox simplifies the management and monitoring of FOI requests and SARs and ensures that the administrative data attached to these cases is stored in limited locations that are easy to search rather than being scattered across several individual addresses. The HSE added that in addition to simplifying search processes, this practice also allows it to keep its record management practices GDPR compliant. The HSE also said, that with regard to two of the individuals referred to by the applicant, in practice, any FOI correspondence received directly into these mailboxes is moved to FOI.South@hse.ie .
Further to the applicant’s query as to whether the email accounts of those staff members who processed his original request as well as his internal review request, had been searched, the HSE provided the following information. It said that on receipt of the applicant original request to the [email FOI.South@hse.ie mailbox ] , as with any similar such request, it was examined for validity, logged on the relevant database, given a reference number and assigned to the appropriate FOI decision maker. It said that the Consumer Affairs team also created an electronic folder corresponding with the relevant reference number and it said that all communication regarding the request is stored in that electronic folder. Following receipt of the applicant’s request for internal review, the request was forwarded to the Head of Services for Mental Health of the respective regional area who confirmed who the assigned reviewer would be. It said that all administrative data generated by the Consumer Affairs team or sent to it during the internal review process is stored on the original electronic folder. The HSE said that as all correspondence relating to FOI requests and internal reviews are held either on the generic mailbox or the relevant electronic case folder, there is no need to search any other inboxes/locations.
Further to the applicant’s query with regard to any emails sent to the generic email address of this Office ( applications@oic.ie ) and any searches were undertaken of staff members who interacted with this Office on OIC-97608-C3Q2T4 and OIC-97817-N1V0F3 the HSE provided the following information. The HSE said that the FOI Officer, who was responsible for the HSE submissions in the two specified cases, confirmed that she searched both the generic email address ( FOI.South@hse.ie ) and her own mailbox for correspondence relevant to the two requests and is satisfied that all relevant information has been identified. The HSE also referred to the searches undertaken of the electronic case folders as referred to above.
As set out above, it is the HSE’s position that all reasonable steps have, at this stage, been taken to ascertain the whereabouts of records coming within the scope of the applicant’s requests and that no further relevant records exist or can be found. It is important to note that it is possible, and it is clearly envisaged by the Act, that records may exist, but still may not be found after all reasonable steps have been taken to ascertain their whereabouts. In certain cases, and depending on the circumstances, an FOI body may not be a position to state definitively what happened to the records or why they cannot be found. However, this Office takes the view that, in acknowledgement of the fact that situations can arise where records cannot be found, the FOI Act does not require such certainty. Rather, it requires the body to take all reasonable steps to ascertain their whereabouts. Moreover, the FOI Act does not require an FOI body to continue searching indefinitely for records that cannot be found. We may conclude that an FOI body has conducted reasonable searches even where records were known to have existed but cannot be found.
The question I must consider in this case is whether the HSE has taken all reasonable steps to ascertain the whereabouts of records relevant to the applicant’s request. Having considered the details of the searches undertaken and its explanation as to why no further records exist or can be found, and in the absence of further supporting evidence to suggest that specific additional searches may be warranted, I am satisfied that it has. It seems to me that a thorough search has been undertaken using appropriate search terms and asking the relevant individuals to look for records. I am satisfied that, on balance, the HSE has provided a sufficiently detailed and cogent explanation of the relevant searches carried out, and of its storage and retention practices and policies, the account for the lack of records which the applicant asserts should exist. Furthermore, I consider that, in relation to the applicant’s FOI request generally, the HSE has provided a reasonable and logical explanation for the lack of additional records, and has provided a clear and adequately detailed explanation of the nature of its systems and processes that accounts for the non-existence of additional records. Clearly, the applicant does not consider such explanations adequate. However, it is important to recall that the test in section 15(1)(a) is whether searches have been reasonable, and this Office does not take the view that the FOI Act requires absolute certainty as to the location of or (as in this case) existence of records. It is also important to recall that, as set out above, we do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects an FOI body’s explanation of why a record does not exist. Given the requirements of this test, I consider that the HSE has provided sufficient information to this Office to demonstrate that the steps it took in this case to establish the non-existence of the records sought were reasonable.
For these reasons, I find that the HSE was justified in refusing to release any further records on the basis that such records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
Accordingly, I find that, the HSE was justified in relying on section 15(1)(a) of the FOI Act to refuse access to any additional records relevant to parts (i) and (ii) of the applicant’s amended request on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Section 37(1)
As set out above, the HSE has refused access to certain information on pages 1, 19, 20, 23 and 37 of the records released to the applicant on 16 October 2023 comprising parts of the applicant’s mental health files.
Section 37(1) 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 relating to an individual or individuals other than the requester. This does not apply where the information involved relates to the requester (section 37(2)(a) refers).
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. The Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition.
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.
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.
Mindful of the provisions of section 25(3), I cannot provide a detailed description of the outstanding information in the records. However, I can say that the information in the records which has been redacted relates to individuals other than the applicant. In certain cases the information comprises personal mobile phone numbers of individuals. Having examined the withheld information, I am satisfied that it comprises personal information relating solely to individuals other than the applicant. I am satisfied that the release of any additional information would involve disclosure of personal information relating to individuals other than the applicant and that section 37(1) applies.
Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. However, I am satisfied that the relevant circumstances do not arise in this case.
Section 37(5) provides that a request that would fall to be refused under subsection (1) may still be granted where, 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 person to whom the information relates. No argument has been made that the release of the records to the applicant would benefit the other individuals, nor is it apparent to me how release would do so. I find that section 37(5)(b) does not apply.
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 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.
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 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 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 this case, while the applicant did not identify any specific public interest factors in favour of the release of the records at issue that might outweigh, on balance, the privacy rights of the other individuals, he indicated in his correspondence with this Office that he wants access to the records as he alleges that HSE staff made defamatory statements in relation to him to this Office. While the applicant has essentially expressed a private interest for seeking access to the records, it seems to me that his reasons for seeking access to the records are reflective of a public interest in ensuring that appropriate procedures are followed by the HSE in its engagement with this Office.
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. 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).
Having considered the matter, it is not apparent to me how the release of inherently sensitive and private information relating to individuals other than the applicant, effectively, or at least potentially, to the world at large, would enhance transparency around the manner in which the HSE carries out it functions. In the circumstances, I do not accept that the public interest in releasing the information to which access have been refuses in the records outweighs, on balance, the privacy rights of the other individuals. I find, therefore, that section 37(5)(a) does not apply.
In conclusion, I find that the HSE was justified in refusing access to information on pages 1, 19, 20, 23 and 37 of the records released to the applicant on 16 October 2023 on the basis of section 37(1) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision.
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.
Mary Connery, investigator