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Whether the HSE was justified in refusing a request from the applicant for details of the General Medical Services (GMS) Scheme annual leave/study leave forms signed by a named locum doctor for a specified period

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant made a request to the HSE on 15 November 2014 for details of the General Medical Services (GMS) Scheme annual leave/study leave forms signed by a named locum doctor from 1996 to 2014. On 31 March 2015, the HSE issued a decision refusing the applicant's request on the ground that it could not locate records sought and even if it had, they may have been refused on the grounds that they would disclose personal information relating to a third party.

The applicant sought an internal review of that decision on 3 April 2015. On 1 July 2015, the HSE issued its internal review decision in which it affirmed its decision to refuse access to the records sought on the ground that access to the records sought would involve the disclosure of personal information relating to third parties. The applicant sought a review by this Office of the HSE's internal review decision on 6 July 2015.

For the purposes of conducting the review, this Office sought copies of the records held by the HSE coming within the scope of the applicant's request. The HSE initially stated that it could find no relevant records. However, following clarification by the applicant that the locum doctor in question had provided locum services for other named doctors and not for him, the HSE located a number of electronic records relating to the services provided. I am satisfied that the information contained in these records, and the explanation provided by the HSE as to the services provided, is sufficient to allow me to conclude this review.

In conducting the review, I have had regard to the communications between the applicant and the HSE as set out above. I have also had regard to communications between this Office and both the applicant and the HSE, and to the contents of the records located by the HSE on foot of the further searches which it performed during the course of this review.

Scope of Review

This review is concerned solely with the question of whether the HSE was justified in its decision to refuse access to the records sought under section 37 of the FOI Act on the ground that granting access to the records would involve the disclosure of personal information relating to third parties.

Analysis and Findings

Section 37(1) of the FOI Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including "... (iii) information relating to the employment or employment history of the individual...".

As I have outlined above, the applicant sought details of the GMS Scheme annual leave/study leave forms signed by a named locum doctor for a particular period. In his request for internal review, the applicant stated that he was simply asking for confirmation that the named doctor was employed to cover holidays, the relevant dates and the doctor involved and he argued that this is not personal information. Essentially, the applicant's argument is that the disclosure of the records sought would disclose nothing more than the fact that the GMS doctor had taken leave and that locum services were provided for the period by a locum doctor. He argues that this is not personal information as the GMS doctor's patients would be aware of that fact.

I understand that where locum services are provided, the GMS doctor in entitled to apply to the HSE, under the GMS contract, for payment of a contribution towards locum expenses. From my examination of the electronic records provided by the HSE, I note that the information provided to the HSE in circumstances where locum cover is provided includes the name of the doctor for whom locum cover is provided, the name and address of the locum doctor, the start and end dates of the cover period and the type of leave for which cover was arranged.

While I fully accept that patients of a GMS doctor will be aware of the fact that locum services are in place at any particular point in time, I am satisfied that the release of the information sought would disclose more than this. It would disclose that a particular doctor had taken leave on particular dates, the type of leave, the details of the locum doctor engaged to provide cover, and the fact that the GMS doctor had applied to the HSE for payment of a contribution towards locum expenses.

Having regard to the broad definition of personal information as set out in the FOI Act, I am satisfied that granting access to the information sought would disclose personal information relating to individuals other than the requester. Accordingly, I find that section 37(1) applies.

Sections 37(2) and 37(5) of the FOI Act set out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances set out in section 37(2) arise in this case. Section 37(5) 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 information would be to the benefit of the person to whom the information relates.

I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

In considering the public interest test at section 37(5)(a), I have had regard to 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 (available at www.oic.gov.ie). In the judgment, 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 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 37(5)(a).

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. As such, I accept that there is a public interest in promoting openness and transparency in the manner in which the HSE administers payments under GMS contracts. On the other hand, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 and in 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.

The applicant has not made any specific public interest argument as to why this information should be released to him, besides it being in the interests of the "common good". Having regard to the applicant's comments in his request for internal review, it seems to me that any interest the applicant may have in the release of the information request should properly be characterised as a private interest. I am satisfied that the public interest in this review lies in refusing access to the personal information of third parties. Therefore, I find that section 37(5)(a) does not apply in this instance, and the HSE was justified in refusing access to the information sought under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2015, I hereby uphold the decision of the HSE to refuse access to the information sought under section 37.

Right of Appeal

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