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Whether the HSE was justified in its decision to refuse access to records relating to the Elder Abuse File of the applicant's mother-in-law which refer to the applicant

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 14 May 2014, the applicant made an FOI request to the HSE seeking copies of any records or notes which referred to her in files relating to her mother-in-law held by a Senior HSE Case Worker. On 18 June 2014, the HSE notified the applicant that it had identified nine documents coming within the scope of the request, of which it was releasing four in part. The four documents were released subject to redactions under sections 28 and 26(1)(a) of the FOI Act (personal information of third parties and information given in confidence, respectively).

The applicant sought an internal review of the HSE's decision on 24 June 2014. On 23 July 2014, the HSE upheld its original decision on internal review. However, the internal reviewer relied solely upon section 28 of the FOI Act to refuse access to the information withheld by the HSE. The applicant applied to this Office on 11 September 2014 for a review of the HSE's decision.

I note that Ms Sandra Murdiff, Investigating Officer in this Office, contacted the applicant on 7 January 2015 and informed her of her view that the HSE was justified in refusing to release the records in question on the basis that personal information of third parties was exempt from release under section 28(1) of the FOI Act. Ms Murdiff also informed the applicant of her opinion that the HSE had properly refused access to the records which contained this information. The applicant did not agree with Ms Murdiff's views and I have decided to conclude this review by way of a formal binding decision.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

In conducting this review I have had regard to the HSE's decisions on the matter and its communications with this Office, to the applicant's communications with this Office and the HSE, to the records concerned and to the provisions of the FOI Act.

Preliminary Matters

It is important to note that the applicant's request is in relation to records held by the HSE in regard to her, and the Commissioner's review is concerned only with the matter of access to these records. The Commissioner's remit does not extend to examining the actions of a public body in dealing with matters raised in the records in question or in relation to its management of the applicant's FOI request, other than as part of its requirements under the FOI Act.

The records in question in this review are held on an Elder Abuse File by a caseworker in the HSE. The records comprise file notes, minutes of meetings and various correspondence to and from the HSE and concerned parties relating to the applicant's mother-in-law. I have carefully examined the records in question and the document schedule, both of which were provided to this Office by the HSE for the purposes of this review. While the HSE has stated that nine records fall within the scope of the review, it identified a total of 15 records which were held on the applicant's mother-in-law's Elder Abuse File. The applicant has contended that all 15 records should be released to her in full. In the interest of clarity, I have set out below the records withheld by the HSE as outside scope, the records it refused to release and those it released in part to the applicant. For ease of reference, I shall refer to the records in question using the page numbers listed in the Document Schedule provided by the HSE.

Records Considered to be Outside Scope
The HSE decided that a number of records did not fall within the scope of the applicant's request: Pages 1, 3, 8, 10, 13-25 and 28-35. Pages 3 and 8 appear to be copies of file dividers which clearly do not contain any information relating to the applicant and in my view therefore do not need to be considered further. Having examined the records in question, it seems to me that Pages 10, 25 and 30 do refer to the applicant, albeit mainly in passing, and therefore come within the scope of this review. I am satisfied that the HSE was correct in refusing to release Pages 1, 3, 8, 13-24, 28-29 and 31-35 as they do not relate or refer to the applicant in any way and therefore do not come within the scope of her request.

Records Refused
The HSE refused to release Pages 2, 4, 6, 9 and 11-12 under sections 28(1) and 28(5B) of the FOI Act.

Records Part Granted

The HSE decided to release Pages 5, 7, 26-27 and 36-37 to the applicant in part, with redactions relating to section 28(1) and 28(5B) of the FOI Act.

Scope of Review

Having regard to the above, the scope of this review is solely concerned with whether or not the HSE was justified, under the provisions of the FOI Act, in deciding to refuse access to Pages 2, 4, 5, 6, 7 , 9, 10, 11-12, 25, 26-27, 30 and 36-37 relating to the applicant's request.

Analysis and Findings

It is important to state that section 13(1) of the FOI Act provides for the release of a record with any exempt material therein being redacted, so long as to do so would not render the ensuing copy of the record to be misleading (section 13(2) refers). It is also important to note that section 43(3) of the Act requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record.

Section 28
Section 28(1) of the FOI Act provides, subject to other provisions of section 28, that a public body shall refuse a request for a record where granting it would involve the disclosure of personal information about an identifiable individual. Personal information is defined in section 2 of the FOI Act 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...".

Sections 28(1) and 28(5B)
The information withheld from the records at issue comprises records of meetings held with various family members, correspondence from health professionals, family members and the HSE relating to the applicant's mother-in-law. The records in question contains the names of a number of third parties and much of the information relates solely to the applicant's mother-in-law.

In a situation where a record contains personal information about a requester, which is closely intertwined with personal information about another party, and where it is not feasible to separate the personal information about the requester from that relating to the other party, it can be described as joint personal information and the provision at section 28(5B) of the FOI Act applies. Section 28(5B) provides that, subject to the other provisions of section 28, a request shall be refused where access to the record concerned 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 other than the requester.

Having carefully examined the records in question I find that the withheld information comprises either personal information relating to third parties or joint personal information relating to the applicant and third parties. I find therefore, that sections 28(1) or 28(5B) apply.
Section 28(2)
There are some circumstances, provided for at section 28(2), in which the exemptions at section 28(1) and 28(5B) do not apply. Having carefully examined the details to be withheld, I am satisfied that none of the circumstances identified at section 28(2) arise in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of their information; (c) that the information is not of a kind that is available to the general public; (d) that 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) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. While I note the applicant's contention that the health of her mother-in-law is being put at further risk, in her view, by the Senior Case Worker investigating the applicant rather than other members of the family, there is no evidence before me that release of the information at issue is necessary to avoid a serious and imminent danger to the life or health of any person. Accordingly I find that section 28(2) does not apply to the records at issue here.

Section 28(5)
Under section 28(5) access to the personal information of a third party may be granted where (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.

Under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large. 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 the right to privacy. Having considered the information at issue, it does not appear to me that the public interest in the release of this information would outweigh the right to privacy of the third parties concerned. The Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] IESC 26 (this is available at our website, www.oic.gov.ie) set out the approach 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.

Essentially, 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 public interest test concerned would not weigh in favour of release where the interest identified is exclusively private. In my opinion, the release of this information would satisfy a private, not a public interest. The applicant has very clearly stated that she wants the records concerned in order to identify errors relating to her and to have them amended. I note that Ms Murdiff informed the applicant that any request for amendments to the records released by the HSE would not come within the scope of her original FOI request. The FOI Act itself recognises the public interest in persons exercising their rights under the Act, and in ensuring openness and accountability in respect of how public bodies conduct their functions. In my view, these public interests have been served to a certain extent by the release of other details to the applicant. While the release of details relating to complaints made in an Elder Abuse case may further serve the public interest, I would not be satisfied that they would be served to such an extent that they require the breach of the Constitutional rights to privacy of the third parties to whom the details also relate. I find therefore that no right of access to the records in question arises under section 28(5)(a) of the Act.

Having also considered the record in light of section 28(5)(b), I do not consider that the release of the information concerned would be to the benefit of the third parties involved. The applicant has not identified any benefit to the third parties in question in this record being released and I cannot see how, in the particular circumstances of this case, that the release to the applicant of this information would benefit the people concerned. Accordingly, I find that no right of access to the records concerned arises under section 28(5)(b) of the FOI Act.

Having regard to the above, I am satisfied that the HSE was justified in its decision not to release Pages 2, 4, 5-7, 9-12, 25-27, 30 and 36-37 which contain the personal information of third parties and/or the joint personal information of the applicant and third parties, pursuant to sections 28(1) and 28(5B) of the Act.

Decision

Having carried out a review under section 34(2) of the FOI Act 1997 (as amended) I hereby affirm the HSE's decision to refuse access to the records concerned, pursuant to sections 28(1) and 28(5B) of the Act.

Right of Appeal

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.

Stephen Rafferty
Senior Investigator