Cinneadh
Ms X and Health Service Executive
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-150662-H5V0Q4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-150662-H5V0Q4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
6 January 2025
On 12 February 2024, the applicant submitted a request to the HSE for all records which contain her name or personal details, pertaining to her employment with the HSE between February 2022 and February 2024, excluding her health/medical and occupational records.
I understand that the request was processed by two different areas within the HSE, namely the Employee Relations Department within Cork Kerry Health Community Healthcare (CKCH) and HR within the South South West Hospital Group (SSWHG). I understand that SSWHG located approximately 3,000 records, many of which the HSE said were released in full. This review is concerned solely with the decision made by CKCH. The decision taken by SSWHG is the subject of a separate review by this Office (Case OIC- 152606 refers).
On 14 March 2024, the HSE granted access to 33 records with certain third party information redacted under section 37 of the FOI Act. On 28 March 2024, the applicant sought an internal review of the HSE’s decision. As she did not receive an internal review decision within the required time-frame, she applied to this Office on 11 June 2024 for a review of the deemed refusal of her application for internal review. On 10 July 2024, the HSE issued its effective internal review decision, in which it affirmed its original decision. On 19 July 2024, the applicant applied to this Office for a review of the HSE’s effective position on the request. She clarified in her communications with this Office that she believed further relevant records should exist and she was also unhappy with the redactions made to the records released.
During the course of the review, the HSE released one additional record to the applicant which it said had been discovered following a further search for records carried out by CKCH upon receipt of a request for submission from this Office. Subsequently, the Investigating Officer provided the applicant with details of the HSE’s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no further records related to her request exist or could be found, as well as the reasons outlined for its reliance on section 37 of the FOI Act in redacting certain information. The Investigating Officer invited the applicant to make submissions on the matter, which were duly received.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence outlined above and to the submissions made by both the applicant and the HSE during the course of this review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned with whether the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further records relating to the applicant’s request other than those identified to date on the basis that no further relevant records exist or can be found and whether it was justified in redacting, under section 37(1) of the Act, certain information from the records released.
Section 15(1)(a)- adequacy of searches
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. My role in a case such as this 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 their decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
As noted above, the HSE provided this Office with details of the searches that it undertook to locate relevant records, details of which were provided to the applicant. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purposes of this review.
The HSE’s position is that the vast majority of the records which fall within the scope of the applicant’s request are held by SSWHG, as opposed to CKCH, owing to the fact the applicant is employed with SSWHG currently, and was only employed with CKCH for 6 months of the two-year timeframe set out in her FOI request, the additional 18 months being with SSWHG. In its submissions to this Office, it said that only one of the relevant HR staff worked in CKCH, and as such CKCH holds a very limited amount of records relating to the request. It said that during the course of the review it re-engaged with the CKCH decision maker and internal reviewer. It said the information held in the Employee Relations office is limited in nature, and it is the understanding of CKCH that most of the information which falls within the scope of the applicant’s request is held by SSWHG.
The HSE said that notwithstanding this, on foot on the request for submissions by this Office, and to ensure an exhaustive search was carried out by CKCH, the internal reviewer confirmed that a further search of CKCH’s records was carried out to ensure all records held by Employee Relations were considered. It said that a search of Outlook in-box and sent items was conducted, and that database and search engine functions were searched for records relating to the applicant’s request using her name, full name, first name, surname, and topic name. It said that a manual trawl was also undertaken of the outlook in-box and sent items and the Department diary. It said one additional record was found during this search, a call log, which has since been released to the applicant.
The HSE added that searches were carried out of file indexes and emails using the applicant’s full name, surname, and a search by topic. It said a manual search of files also took place. It said that the Head of HR in CKCH would have no access to search the applicant’s ‘SAP’- the HSE’s HR system in CKCH- as the applicant is no longer a CKCH employee. It said that specific to CKCH Employee Relations file held, a full search of the department’s filing systems- both physical and electronic- was carried out. It said it held no file relating to the applicant as an employee for the period concerned in her request- February 2022 to February 2024. Further to this, the HSE added that as the applicant’s request timeframe was related to 6 months only of her employment with CKCH, the Head of HR arranged for a review of her electronic employment file on the ‘Therefore’ system for the period concerned and established that it held no records relating to her employment in CKCH during that 6 month period, nor, it said, were any documents on the HR file system nor any emails found in relation to her employment during the 6 month period in the Office of the Head of HR.
Finally, in response to the applicant’s query regarding whether any records were found during searches but not scheduled, the HSE said that all the records which were located by CKCH were contained in the schedule of records provided to the applicant in the decision letter dated 14 March 2024.
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should or might exist.
As I have outlined above, the Investigating Officer provided the applicant with details of the searches undertaken by the HSE and of its reasons for concluding that no further relevant records exist or can be found. In response, apart from seeking clarification of a number of matters, the applicant indicated that she was generally satisfied with the HSE’s submissions and she provided no further evidence to suggest that additional relevant records might exist.
Having regard to the details of the HSE’s submissions, and in the absence of any evidence to suggest that further specific searches are warranted, I am satisfied that the HSE has, at this stage, taken all reasonable steps to locate the records sought by the applicant and that it has adequately explained why no relevant records can be found. In the circumstances, I find that the HSE was justified in refusing access, under section 15(1)(a) of the FOI Act, to any further records relating to the applicant’s 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)- personal information
Section 37(1)
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record would involve the disclosure of personal information (including personal information relating to a deceased individual). Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual.
Certain information is excluded from the definition of personal information. Paragraph (I) provides that the name of an individual who holds or held a position as a member of the staff of an FOI body is excluded, as is information relating to the position or its functions or the terms upon and subject to which the individual occupies or occupied that position. The information redacted from the records at issue primarily comprises the name and work address of a staff member of the HSE, and the name of another staff member. However, the records at issue concern a workplace grievance. As such, given the context in which the information at issue is contained within the records, I am satisfied that the disclosure of the redacted information would involve more than simply the disclosure of the names of the individuals. It would also disclose information relating to those individuals in the context of a workplace grievance that is not, in my view, captured by Paragaph (I). Accordingly, I am satisfied that the release of the redacted information would involve the disclosure of personal information relating to the individuals in question and that section 37(1) therefore applies. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37, which I will examine below.
Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
In the circumstances of the case I am satisfied that none of the provisions of section 37(2) serve to disapply section 37(1) in this case.
Section 37(5)
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. Given the circumstances of this case, 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. Firstly, 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 insofar 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 could 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, such as under section 37(8) which I will consider below, 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 individual 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 her submissions to this Office, the applicant did not make any specific public interest arguments in favour of the release of the redacted information, and stated simply that she wished to be given access to the redacted information. In its submissions to this Office, the HSE said that while it recognised there was an inherent public interest in the public knowing how a public body performs its duties, as well as a public interest in members of the public exercising their rights under the FOI Act, it did not believe in this case that such public interest factors in favour of release outweighed the public interest factors in withholding the information. It said it considered that the public interest in protecting the right to privacy of members of the public, the public interest in public bodies being able to perform their functions effectively, and the public interest in safeguarding the flow of information to public bodies, outweighed the public interest for release. Consequently, it said that it was not satisfied in this case that the public interest for release was sufficient to warrant the breach of the third parties’ rights to privacy.
The FOI Act provides a right of access to information in the possession of public bodies to the greatest extent possible consistent with the public interest and the right to privacy. 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).
I accept that there is a public interest in enhancing transparency around the manner in which the HSE carries out its functions generally. However, that public interest has, to a very large extent, been met in this case by the release of the records at issue with minimal redactions. I am aware of no public interest factors in favour of the release of the information at issue that might outweigh, on balance, the privacy rights of the individuals concerned. In making this finding, I am conscious of the fact that the release of records must be regarded, in essence, as release to the world at large. In the circumstances, I find that section 37(5)(a) does not apply.
In conclusion, I find that the HSE was justified in redacting certain information from the records at issue under 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 to refuse access, under section 15(1)(a) of the FOI Act, to any further records relating to the applicant’s request other than those identified to date on the basis that no further relevant records exist or can be found and that it was justified in redacting, under section 37(1) of the Act, certain information from the records released.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator