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Case Number: 160173

Whether the HSE was justified in its decision to refuse the applicant's request for all files on her son since his admission into care in 1997 under section 37(1) of the FOI Act

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 HSE received a request from the applicant on 2 February 2016 for all files on her son since his admission into care in 1997. On 5 February 2016, the HSE refused the applicant's request on the ground that her son is an adult and as such, granting access to the records would involve the disclosure of personal information relating to a third party or third parties.

The applicant sought an internal review of the HSE's decision to refuse her request on 15 February 2016. The HSE issued an internal review request on 11 March 2016 in which it affirmed its original decision to refuse the applicant's request. The applicant sought a review by this Office of the HSE's decision on 5 April 2016.

In carrying out my review, I have had regard to the correspondence between the HSE and the applicant as set out above. I have also had regard to the communications between this Office and the applicant, and between this Office and the HSE.

 

Scope of Review

This review is concerned solely with whether the HSE was justified in its decision to refuse the applicant's request for her son's files on the ground that access to the files would involve the disclosure of personal information relating to a third party or third parties.

 

Preliminary Matters

Section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I take the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Analysis and Findings

Section 37(1) of the FOI Act provides that a public body shall refuse to grant 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 Act, personal information is 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 an FOI body on the understanding that it would be treated by it as confidential. Section 2 of the Act further details fourteen specific categories of information which is personal information without prejudice to the generality of (a) and (b) above, including "... (i) information relating to the educational, medical, psychiatric or psychological history of the individual...".

The files sought by the applicant relate to her son in respect of the time he spent in care. The applicant's son is a third party and an individual in his own right for the purposes of the review. It is apparent that the files sought would contain inherently private information of a very sensitive nature relating to her son. It is also reasonable to assume to all records held on those files would relate to her son, given that they relate to his time in care. Even if it was possible to identify occasional pages or parts of pages from records held on the files that do not specifically refer to the applicant's son, it seems to me that the very fact that they are held on the files in question is likely to be sufficient for me to find that they relate to personal information relating to her son. It is noteworthy that any information relating jointly to the applicant's son and any other party, commonly referred to a joint personal information, is also exempt from release under section 37. In any event, given my approach to section 18 and the granting of access to parts of records, I do not consider it necessary to consider this issue further. Accordingly, I am satisfied that granting access to the files would involve the disclosure of personal information relating to the applicant's son, and I find, therefore, that section 37(1) of the FOI Act applies.

Section 37(2) of the FOI Act also sets out certain circumstances in which 37(1) does not apply. However, I am satisfied that none of those circumstances arise in this case. Furthermore, 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 information would be to the benefit of the person to whom the information relates.

As no evidence has been presented to this Office to suggest that the release of the record at issue would be to the benefit of the applicant's son, I find that section 37(5)(b) does not apply. On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates.

The information at issue in this review consists of the records of the applicant's son's interactions with the HSE. I am of the view that while there is a public interest in the HSE being open, transparent and accountable in the manner in which it performs its functions, 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. I am also cognisant of the fact that disclosure of a record under FOI is, in effect, disclosure to the world at large. Accordingly, I find that the public interest in the release of the information at issue does not, on balance, outweigh the public interest in protecting the privacy rights of the individual to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

For the sake of completeness, I should explain that during the course of the review, Mr Foley of this Office enquired as to the potential applicability of certain Regulations that were in force at the time the request was made and which afforded a right of access to the parents or guardians of certain classes of individuals who have attained full age and who would be incapable of exercising their rights under the FOI Act. The Regulations in question were the Freedom of Information Act 1997 (Section 28(6)) Regulations 2009. The HSE stated that none of the circumstances set out in the Regulations arise in relation to this review. The applicant did not respond to Mr Foley's request for clarification on this same matter. I am satisfied therefore that the 2009 Regulations do not apply.

Accordingly, I find that the HSE was justified in its decision to refuse the applicant's request under 37(1) of the Act.

 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the HSE to refuse the applicant's request for her son's files since his admission into care in 1997.

 

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