Case number: 170410

Whether the HSA was justified in refusing to release copies of witness statements relating to the investigation of a workplace incident on the basis of sections 30, 32, 35, 37 and 42(m)(i) 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

All references to "the applicant" in this decision can be taken to refer to the applicant and/or his solicitor, as appropriate.

On 3 April 2017, the applicant sought access to records relating to an investigation carried out by the Health and Safety Authority (HSA) into a workplace accident in 2011. The HSA's decision of 25 May identified 11 records as relevant to the request. It granted access to 3 records in full. It relied on sections 32, 35, 37 and 42(m) of the FOI Act to withhold access to six records in part and one record (Record 9) in full. In relation to one record (Record 6) material within the record which was deemed to be outside the scope of the original request was excluded.

On 22 June the applicant sought an internal review of the HSA's decision to refuse to grant access to Record 9. The internal review request also raised the matter of Record 6 but following consultation with the applicant the internal review did not substantively address this point. The HSA's decision of 26 July affirmed its original decision to refuse to grant access to Record 9. In reaching this decision the internal reviewer relied on sections 30, 35, 37 and 42(m) the FOI Act. On 21 August the applicant sought a review by this Office of the HSA's decision in relation to Record 6 and 9.

I have decided to bring this review to a close by way of a formal binding decision. In conducting this review I have had regard to the HSA's decisions on the matter and its communications with this Office, to the applicant's communications with this Office and the HAS, and to the contents of the records concerned.

Scope of Review

Record 6 is a compendium of comments from various EU member states attending a working group meeting in Berlin. The applicant contended that not all information relevant to the applicant's original request contained within this document has been released. Having reviewed this document I am satisfied that all information contained therein which is relevant to the scope of the applicant's original request has been released. Therefore, I do not consider that any further consideration of this record is required.

Accordingly, this review is concerned solely with whether the HSA was justified in refusing to grant access to Record 9 on the basis of sections 30, 32, 35, 37 and 42(m) of the FOI Act.

Preliminary Matters

Section 2 of the Act defines "record" as including "a copy or part" of anything falling within the definition of a record. Section 18(1) 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 head of the FOI 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).

The Commissioner takes 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, he is not in favour of the cutting or "dissecting" of records to such an extent. He takes the view that, being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records

It is also important to note that 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.

Analysis and Findings

The HSA has relied on a number of exemptions to withhold Record 9. The record comprises a number of witness statements taken by the HSA in the course of its investigation of a workplace incident. I am of the view that section 37 is the most relevant to Record 9. Accordingly, I shall first consider the application of section 37 to the record concerned.

Section 37 - Personal Information
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if 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 or individuals other than the requester.

Where a record or part of a record contains personal information relating to the requester which is closely intertwined with personal information relating to another party (or parties), and where it is not feasible to separate the personal information relating to the requester from that relating to the other party (or parties), it can be described as joint personal information and section 37(7) must be considered.

"Personal information" is defined in section 2 of Act as follows:

"Personal information means 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 that body as confidential."

The definition also details fourteen specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including

(iii) information relating to the employment or employment history of the individual, and 
(xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI Body concerned relates to the individual..."

The applicant is of the view that the statements taken do not contain personal information. He contended that the information was not given in confidence and could not be "known only to the individual or members of the family or friends of the individual". However, following the Supreme Court's decision in 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 case") I must proceed on the basis that information about an identifiable individual can qualify as personal information where it comes within either (a) or (b) above or where it comes within one or more of the categories (i) to (xiv) which are non-exhaustive.

The witness statements include the name, address, contact details, occupation and date of birth of each of the witnesses to the relevant incident. They also contain individual accounts of the incident, which took place during working hours, in the course of their employment. The applicant is of the view that removal of this identifying information would serve to anonymise the statements and allow release of the records under FOI. However, the records also contain information such as where each person was when the incident occurred, what they were doing in the lead up to the incident and how they reacted afterwards. In addition some of the statements make reference to medical treatment subsequent to the incident. Having reviewed the records concerned, I am of the view that release of any of the information withheld would allow for the identification of who made each statement.

In addition, I consider that it would not be feasible to redact additional information which could identify the witnesses from the records without causing the remainder of the records to be misleading (section 18 of the Act refers).

Having reviewed the records and redactions, I am satisfied that all of the withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals. Accordingly, I find that section 37(1) of the Act applies to record 9.

Subsection (1) is subject to other provisions of the section. In my view, only section 37(5)(a) is of relevance in this case. That section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates.

In considering the public interest test at section 37(5)(a), I have had regard to the Rotunda case cited above. 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).

It is important to note, as stated above, that release of records under FOI is regarded as release to the world at large. While the applicant also referred to the release of witness statements during court cases to support his arguments for release, this review solely concerns a decision to refuse access to records under FOI.

I must have regard to the provisions of the FOI Act, which recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will 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.

In my view, the withheld information is inherently private. Furthermore, it seems to me that the public interest in enhancing the transparency and accountability of the HSA in how it carries out its functions has been served to some extent by the release of the majority of the records held. The question I must consider is whether the public interest in further enhancing the transparency and accountability of the HSE is sufficient to outweigh, on balance, the privacy rights of the third parties concerned. In my view it is not, given the nature of the information at issue. I therefore find that section 37(5)(a) does not apply in the circumstances and that Record 9 is exempt under section 37(1) of the FOI Act.

Having found section 37(1) to apply to the record, I do not find it necessary to consider the decision of the HSA to refuse access to the record on the basis of other exemptions in the Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the HSA's decision to refuse access to Record 9 under section 37(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.

Stephen Rafferty
Senior Investigator