Cinneadh
Mr. X and The Health Service Executive
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-150068-X2Z6K1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-150068-X2Z6K1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the HSE was justified in refusing a request for the signatory or signatories to a letter admitting the applicant to a psychiatric hospital
23 April 2025
On 18 October 2023, the applicant made an FOI request to the HSE for details of “who or whom on [a particular date] signed the admission letter to admit me to [a particular psychiatric Hospital].” The HSE’s decision of 4 December 2023 refused the request under section 15(1)(i) of the FOI Act, on the basis that the requested record(s) had already been released to the applicant and were available to him. It referred also to the applicant’s requests for his medical records under FOI and Data Protection legislation in 2004, 2011, 2012 and 2021.
The applicant sought an internal review of the HSE’s decision on 20 December 2023. The HSE’s internal review decision of 17 January 2024 said it had considered the request to cover a two-page Temporary Patient Form (the form). It said also that the applicant’s entitlement to the details concerned had already been considered in a previous review by this Office.
The HSE said that it was refusing access to page 1 under section 37(1) of the FOI Act, on the basis that it contained personal information of others. It said also that disclosure of the details concerned would breach a duty of confidence (section 35 of the FOI Act).
The HSE said that the OIC’s previous decision had refused access to page 2 under the then equivalent of section 37(3) of the FOI Act (release prejudicial to physical or mental health). It said that the OIC had directed the HSE to make page 2 available to a suitable health professional of the applicant’s choosing, further to the then equivalent of section 37(4) of the FOI Act. The HSE said that it had duly made page 2 available to the applicant’s GP as his nominated professional, and that it was refusing to grant access to a further copy thereof under section 15(1)(i) of the FOI Act.
On 24 June 2024, the applicant applied to this Office for a review of the HSE’s decision.
During the review, the HSE confirmed that it released page 2 of the form to the applicant under Data Protection legislation in June 2012. It also confirmed that it has now provided him with a further copy of the page concerned. Its position remains unchanged regarding page 1.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, to contacts between this Office, the HSE and the applicant, to the details at issue, and to the provisions of the FOI Act.
As the applicant knows, I am not giving any further consideration to page 2 of the form. The scope of my review is confined to the sole issue of whether the HSE was justified under the FOI Act in refusing to grant access to page 1.
The review does not extend to any other matter, including the HSE’s performance of its functions or the actions of any third party.
The applicant describes the circumstances in which he says he was admitted to the Hospital. He says that the admission was against his will. He says that the requested details will help him resolve the matter and conclude what has been a terrible life issue for him. He says that it is critical for him to get closure, and that he believes the grounds for withholding the information are invalid.
The applicant also sets out various other details, which I consider to be of a very personal nature to him and which I do not consider appropriate to include here. However, I confirm that I have had regard to the details concerned. The applicant says that he never got an explanation as to why he was admitted to the Hospital. He says that he wants to know the name of the practitioner on the day he was admitted to the Hospital; who signed the papers; and the name of the persons who made the application for his committal.
I appreciate how important it is to the applicant that he obtains the details he is seeking. However, section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse a request, any reason that a requester gives for the request shall be disregarded. This means that in this case, I cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.
Section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. This provision also has implications for the extent to which I can give reasons for my decision in this case.
Release of records under FOI is generally understood to have the same effect as publishing them to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.
I will firstly consider the HSE’s application of section 37 of the FOI Act to page 1.
Section 37(1) – personal information
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.
Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would ordinarily 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 also includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including (i) information relating to the medical history of the individual and (xiv) the views or opinions of any other person about the individual. Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.
The parties’ submissions
The HSE’s position is that page 1 contains third party personal information.
The applicant has made no arguments as to why the relevant details should not be considered as personal information, other than to say that he believes the grounds for withholding them are invalid.
Analysis
I have examined the contents of page 1. Mindful of the requirements of section 25(3), I am satisfied that the details therein are of a type that meets the definitions of personal information and also are captured by one or more of the examples of what comprises personal information about identifiable individuals. I agree with the HSE that page 1 of the form contains third party personal information. However, it is relevant that the form concerns the applicant’s committal to the Hospital. I am satisfied that the form also comprises personal information relating to the applicant’s medical history.
In the circumstances, it seems to me that the third party personal information in page 1 is inextricably linked to personal information about the applicant (known generally as “joint personal information”). I am also satisfied that even if the third party name or names were to be redacted, individual(s) would be identifiable from the context and content of the remaining details.
While the applicant may argue that he is entitled to joint personal information, the provisions of section 37(7) of the FOI Act are relevant, however. Section 37(7) provides that, notwithstanding section 37(2)(a) (see below), access to a record shall be refused where access to it would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester.
I find that section 37(1) applies to page 1. This is subject to the consideration of sections 37(2) and (5), however.
Section 37(2) - exceptions
Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. The HSE says that none of the circumstances arises in this case. The applicant has not made any arguments in relation to section 37(2).
I note in particular that section 37(2)(a) provides for the grant of access to personal information relating to the requester. However, I am satisfied that no information falls for release further to this provision of the FOI Act. I have already outlined the provisions of section 37(7). While I am satisfied that the details comprise joint personal information, I do not consider that personal information relating to the applicant can be separated from that of the other individual(s).
I am satisfied that the remaining circumstances set out in section 37(2) do not arise.
Section 37(5)(a) – the public interest
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. I have no reason to consider that section 37(5)(b) applies and the applicant has made no arguments to this effect.
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 an 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 (such as the Regulations made under section 37(8), which are not relevant here) FOI is not about granting access to information to particular individuals only. Furthermore, 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 had regard toThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (the eNet judgment). In relevant part, 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 parties’ arguments
The HSE says that it considered the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. It says that it also took account of the very strong public interest in protecting the right to privacy. It says that the public interest in favour of release would not be served by disclosure of page 1 to such an extent that the ensuing breach of third party privacy rights would be justified.
The applicant’s arguments
The applicant does not make any specific arguments in relation to the public interest. However, his reasons for making his request appear to me to reflect an argument that there is a public interest in enabling scrutiny of the HSE’s performance of its functions, and in enabling scrutiny regarding the actions of non-HSE third parties, in relation to his admission to the Hospital.
Analysis
As already explained, this Office has no role in examining the HSE’s performance of its functions, including its decisions or actions regarding the applicant. However, I am satisfied that there is a public interest in enabling scrutiny of the HSE’s performance of its functions in relation to the applicant, and in ensuring any accountability that may be necessary in this regard. The disclosure of page 2 serves this public interest to a considerable extent, in that it contains the name of the relevant medical practitioner and the name of the Hospital’s officer as authorised to admit the applicant. However, I accept that disclosure of page 1 will provide some further insight into the HSE’s performance of its functions, and that the public interest is entitled to a reasonable amount of weight accordingly.
As set out already, I am taking it that the applicant argues that the public interest requires disclosure of information concerning the actions or involvement of any non-HSE third parties in his admission to the Hospital. However, it is important to note this Office’s view that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations. In general terms, it was not designed as a means by which the actions of third party individuals were to be opened up to scrutiny.
I am satisfied that disclosure of page 1 would effectively place third party personal information in the public domain. I consider this third party personal information to be of an extremely private and sensitive nature, such that its disclosure to the world at large would result in very significant breaches of privacy rights. I am satisfied that there is very significant weight to the public interest in protecting against such breaches.
Having considered the matter, on balance, I do not consider that the public interest that the request should be granted outweighs the rights to privacy of the third party or parties to whom page 1 relates. I find that the applicant is not entitled to page 1 further to the provisions of section 37(5)(a) of the FOI Act.
In the circumstances, there is no need for me to consider the HSE’s claim in relation to section 35 of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision, on the basis that page 1 of the form is exempt under section 37(1) of the FOI Act.
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.
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Anne Lyons
Investigator