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Case Number: 160232

Whether the HSE was justified in its decision to refuse access to information relating to the care and treatment of the applicant on the basis that sections 31, 35 and 37 of the FOI Act applied

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

Background

In his request of 27 November 2015, the applicant sought access to "a complete copy of all my files held by the HSE". In its decision of 4 March 2016, the HSE identified two files containing 356 pages of records as relevant to the request. Access to some of these records was granted in full, while others were refused in full or in part on the grounds that section 31, 35 and 37 of the FOI Act applied. The applicant sought an internal review on 4 April 2016. In its internal review decision, the HSE varied its original decision and released some additional information. The applicant applied to this Office for a review of the decision on 25 May 2016. During the course of the review, the HSE released some additional records and it revised its position as to the exemptions claimed on some of the records.

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the HSE, to the content of the records and to the provisions of the FOI Acts. I have decided to conclude the review by making a formal, binding decision.

Scope of Review

The review relates solely to whether the decision of the HSE to refuse access to the withheld information was justified. Any records or parts of records which have been released are no longer within the scope of this review. For the avoidance of doubt, the following records, or parts thereof, to which access has been refused are in the scope of this review:

File A, Pages 1-3, 4, 6-7, 14, 17, 20, 23, 28-31, 35-37, 42-44, 45, 48, 50-52, 54-61, 62-66, 69-70, 71, 72-75, 76-88, 91, 95, 101, 104, 107-109, 111, 113, 116-117, 121-124, 126-130, 132-137, 139.

File B, Pages 1, 9-13, 15-16, 17-91, 101, 106, 112, 121-123, 140, 144, 152, 155, 160, 168, 171-172, 178-180, 191, 193-194, 196, 198, 199.

Preliminary Matters

Section 18
I should explain the approach to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including "a copy or part of any thing that falls within paragraph (a), (b), (c) or (d)" of the definition of a record. Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading.

Section 22
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

Section 25(3)
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe some of the records is limited.

The FOI Act provides for a right of access to records held by an FOI body, subject to certain exemptions. The release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large. In this case, it is clear that some of the records at issue are records which the applicant would previously have seen, as they are records of correspondence between the applicant and bodies other than the HSE, or records which the applicant would have been notified of by the relevant bodies. It is not clear how some of these records came to be on the HSE files, despite this question having been put to the HSE. I note that the [HSE staff member] who was dealing with the applicant at the relevant time no longer works for the HSE. The fact that the applicant had access to these records in another context and is aware of their content does not necessarily mean that he is entitled to access to these same records under FOI.

Analysis and Findings

Section 31(1)(b)
The HSE refused access to File A, pages 69-70, 72-75 and File B, pages 69-91 on the basis that section 31(1)(b) applies. These records relate to proceedings in the Circuit Family Court under family law legislation.

Section 31(1)(b) of the FOI Act (as amended) provides that:-

A head shall refuse to grant an FOI request if the record concerned -

.....(b) is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court,..."

The In Camera Rule
The in camera rule (i.e. that proceedings be held otherwise than in public) applies to Court proceedings in accordance with provisions of the relevant family law legislation. It is a contempt of Court for any person to disseminate information emanating or derived from proceedings held in camera without prior judicial authority. It is clear from my examination of the records they were prepared in the context of proceedings under family law legislation. I am satisfied that those records which relate to proceedings under the family law legislation are covered by the in camera rule. Accordingly, as I am not aware of the existence of any prior judicial authority for the release of these records, I am satisfied that release of these records to the applicant on foot of his FOI request would constitute contempt of Court. I find, therefore, that section 31(1)(b) applies to File A, pages 69-70, 72-75 and File B, pages 69-91 and that the HSE was justified in refusing access to them.

Section 37 - Personal Information
The HSE refused access to the following records, in full or in part, on the basis that they contained personal information of persons other than the requester:
File A, Pages 1-3, 4, 6-7, 14, 17, 20, 23, 28-31, 35-37, 42-44, 45, 48, 50-52, 54-61, 62-66, 71, 76-88, 91, 95, 101, 104, 107-109, 111, 113, 116-117, 121-124, 126-130, 132-137, 139.
File B, Pages 1, 9-13, 15-16, 17-91, 101, 106, 112, 121-123, 140, 144, 152, 155, 160, 168, 171-172, 178-180, 191, 193-194, 196, 198, 199.

Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. Where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information about another party (or parties), and where it is not feasible to separate the personal information from that relating to the other party (or parties), it can be described as joint personal information. Section 37(7) further provides for the refusal of a request where the body considers that access to the record 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. The FOI Act defines the term "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 the body as confidential. The definition also contains a list of 14 specific types of information including information relating to the medical or psychiatric history of an individual and information relating to the employment or employment history of an individual.

An [FOI body ] administrative records
File A, pages 54 and 55 and file B, pages 11, 12, 13, 106, 121, 122 and 123 can be described as administrative records of [an FOI body] relating to human resources matters to do with the applicant. In the circumstances of this case, I do not consider it appropriate to provide a more detailed description of these records. However, it is relevant to say that the applicant is a retired member of [the FOI body]. The HSE refused access to all or parts of these records on the basis that, as well as containing personal information of the applicant, they also contained personal information of other members of [the FOI body] , i.e. joint personal information.

I am satisfied that the names of members of [the FOI body] recorded for the purpose of the performance of the functions of the [FOI body] as an FOI body are not personal information and should be released. I find that section 37(1)/37(7) does not apply to these records and direct that they be released, apart from the name in the handwritten sentence on File A, page 54.

File B pages 140, and 160 are reports on the applicant by a medical consultant to the applicant's employer [...]. The name and address of the consultant have been redacted from page 152. The HSE refused access on the basis that these records contained joint personal information of the applicant and the consultant. As the consultant is [ ...], it was not possible for the HSE to obtain consent to the release of the records. However, having examined the records and other information on the files, it is clear that the consultant was engaged by [the FOI body] to see and report on the applicant's health status. Therefore, I am satisfied that these records do not contain personal information of the consultant as he was a service provider to [the FOI body]. I find that section 37(1)/37(7) does not apply to these records and direct that they be released.

File A page 104 is a letter to the HSE [from the applicant's solicitor] about the applicant. Having examined the record, I am satisfied that it is the personal information of the applicant. I find that section 37(1)/37(7) does not apply and this record should be released.

Records of unconnected individuals
File B pages 15 and 112 are copies of prescription records relating to persons unconnected with the applicant and appear to have been placed on his file in error. I am satisfied that these pages are personal information of those individuals and find that section 37(1) applies.

[Former Statutory body, not subject to FOI] records
File B pages 17-91 comprise a letter dated 20 April 2000, and enclosures, from the [former statutory body, not subject to FOI]to the applicant. In its original and internal review decisions, the HSE refused access to these records in full on the basis that section 31 of the FOI Act applied. During the course of the review, the Investigator sought submissions from the HSE in order that it might justify this position. It became clear that section 31 did not apply on the basis claimed by the HSE. However, as I have found above, section 31(1)(b) applies to pages 69-91. The HSE then revised its position and claimed that sections 35 and 37 applied to the remaining pages. I do not consider that I can provide a more detailed description of the information in the records having regard to section 25(3). Having examined the records it is clear that they contain personal information of numerous other parties, as well as that of the applicant. I am satisfied that pages 17-68 should be taken together and, mindful of the provisions of section 18, find that they contain joint personal information of the applicant and other individuals and I find that section 37(1)/37(7) applies.

Remaining records
The remaining records or parts of records to which access has been refused under section 37 can be described as medical and psychiatric records of the applicant. Having examined the withheld information, I am satisfied that it is personal information of persons other than the applicant. I find that section 37(1)/37(7) applies to the withheld information.

Section 37(2)
There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) that the 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. I find that section 37(2) does not apply to the withheld information.

I turn now to section 37(5) which also provides for exceptions to the section 37(1)/37(7) exemption. I see no basis for finding that the grant of the request would benefit the individuals to whom the information relates and I am satisfied that section 37(5)(b) does not apply in this case.

Section 37(5)(a) - Public Interest
Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. In relation to the question of where the public interest lies, I have had regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"]. In the Rotunda Hospital case, the Supreme Court drew a distinction between private interests and public interests. The comments of Fennelly J. indicate that a request made "by a private individual for a private purpose" is not a request "made in the public interest". Moreover, in the opinion of Macken J., the public interest would require "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law".

The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. The FOI Act further recognises the public interest in persons being able to exercise their rights under the FOI Act, although this alone would not be sufficient, in my view, to warrant the breach of an individual's right to privacy. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - in 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 also 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 find that, in the circumstances of this case, the right to privacy of the individuals whose personal information is in the records outweighs the public interest in granting the applicant's request.

In summary, I find that section 37(1) and/or 37(7) applies and that none of the exceptions under section 37 apply to the information.

As I have found that the withheld information for which other exemptions have been claimed by the HSE is exempt as set out above, it is not necessary for me to deal with the other exemptions.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the HSE. I find that section 31(1)(b) applies to certain records. I find that section 37 does not apply to the withheld information in File A, pages 54 and 55 and file B, pages 11, 12, 13, 106, 121, 122 and 123; neither does it apply to File A, page 104, File B pages 140, 152 and 160 and direct that these be released. I find that section 37(1) and/or 37(7) applies to exempt the remaining withheld information.

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator