Whether HIQA was justified in refusing access to records relating to the applicant and his children on the basis that the records are not held by HIQA for the purposes of the FOI Act

20 November 2020

Background

In a request dated 10 March 2020, the applicant sought access to all records relating to himself and his children. HIQA identified 10 emails but refused access to these records on the basis that they contained the joint personal information of the applicant, his children and other individuals.  The applicant sought an internal review and in a decision dated 6 April 2020, HIQA upheld the original decision.  On 13 May 2020, the applicant applied to this Office for a review of HIQA’s decision.

During the course of this review, the question arose as to whether or not the records are held by HIQA for the purposes of the FOI Act.  If it is the case that the records are not deemed to be held by the public body, then there arises no right of access to them under the FOI Act.  I consider it appropriate therefore to deal with this issue in the first instance before considering whether or not section 37 applies.  Both parties to the review were notified of this issue and offered an opportunity to make submissions.  HIQA did not dispute that it does not hold the records and the applicant did not offer any submissions on this point. 

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the applicant’s comments in his application for review, as well as his discussions with this Office on the matter and to the submissions made by the FOI body in support of its decision. I have also examined the records at issue and had regard to their contents. I have decided to conclude this review by way of a formal, binding decision.

Scope of the review

This review is concerned with whether or not HIQA was justified in refusing access to 10 emails on the ground that the records are not held by it for the purposes of the FOI Act. 

If I find that the records are held by HIQA, I will go on to consider the application of section 37 of the FOI Act. 

Preliminary Matters

I wish to note at the outset that the applicant has provided this Office with some background to his FOI request and his reasons for seeking access to the requested records. Section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that I cannot take account of the applicant's motives for seeking access to the information in question, except in circumstances where those motives reflect public interest factors in favour of release of the information, where the FOI Act requires a consideration of the public interest.

Further, it is important to note that a review by this Office is considered de novo and therefore it is based on the law and the circumstances as they apply at the time the Commissioner makes a decision.  This approach has been endorsed by the courts. 

Analysis and Findings

HIQA identified 10 emails and applied section 37 to the records on the basis that they contained the personal information of individuals other than the applicant and his children and/or the personal information of the applicant and his children that was inextricably linked to the personal information of other individuals.  HIQA described the records as containing personal information of a highly sensitive and personal nature relating to a number of individuals. 

The applicant, although unaware of the content of the emails, says that he is aware that a HIQA employee has made allegations against him and that by refusing access to these records HIQA is covering up for one of its employees who is abusing their office.

Nature of the records

Having examined the records, it is clear to me that they are inherently private and were not created in the course of any function of this particular public body.  The records do not contain any information that relates in any way to the work of HIQA.  While I am limited in how I can describe the records, it is apparent that an employee used a work email address in a private capacity and not in connection with working at HIQA. The staff member was not acting in the capacity of carrying out any official functions. 

This gives rise to the question of whether or not HIQA actually holds the records for the purposes of the FOI Act. 

Meaning of “held”

Section 11(1) of the FOI Act states that every person has a right to be offered access to any record held by an FOI body.  The meaning of what is “held” by an FOI body has been the subject of discussion in the courts.  A recent decision of this Office, Right to Know CLG and Department of Transport, Tourism and Sport (OIC-59124-F4M4H9) also addressed the meaning of “held” for the purposes of FOI when it discussed the Supreme Court judgment in Minister for Health v Information Commissioner [2019] IESC 40 (known as the Drogheda Review case):

“On the meaning of held, Finlay Geoghegan J. found that for a record to be held within the meaning of section 6(1) of the Act of 1997, the public body must be in lawful possession of the record in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the record.

[…] [S]ection 11(1) of the Act of 2014 is the equivalent of section 6(1) of the Act of 1997. As such, having regard to the findings of the Supreme Court in the Drogheda Review case, I accept that for the records sought in this case to be deemed to be held by the Department, the Department must be in lawful possession of the records in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the records.

I should say at the outset that I do not accept that a public body can legitimately issue blanket refusals of requests for records solely on the ground that the records sought do not appear to relate to its functions, without having had due regard to the particular circumstances arising. In my view, there may well be legitimate reasons for a public body to hold records that, on their face, do not appear to relate to the public body’s functions. It seems to me that where a body receives such a request, it should first seek to establish whether any relevant records are held by it.”

In this case, the records at issue were not created by a staff member while carrying out his or her official functions. The records contain the personal information of a number of individuals, and details of their private lives, but no information relating to the business of HIQA.  They do not pertain to HIQA’s official functions; they relate solely to the private affairs of an individual.  As such, while the records are present on HIQA’s systems, it is not the case that HIQA holds the records for the purposes of its business or functions.  In my view, this means that HIQA does not hold these records for the purposes of the FOI Act. 

Accordingly, I find that HIQA does not hold the records for the purposes of section 11(1) of the FOI Act and there is therefore no right of access to these records under the FOI Act.  As a result of this finding, it is not necessary for me to consider the application of section 37. 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul HIQA’s decision to refuse the applicant’s request for access to records relating to him and his children under section 37(1) of the FOI Act.  I find that HIQA does not hold the records for the purposes of the FOI Act and there is therefore no right of access available under section 11(1) of the FOI Act. 

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.

 

Deirdre McGoldrick

Senior Investigator