Case number: 120194
On 23 January 2012, the applicant made a request to the HSE (reference 60/2012) for access to his medical records which had previously been refused in whole or in part on foot of an earlier FOI request for the same records (reference 204/2009). On 15 March 2012, the HSE decided to again refuse access to the records at issue, apart from the following:
On 1 May 2012, the HSE decided, on internal review, to release page 6 of File 1 in full and to uphold the original decision in respect of the remaining records. On 1 August 2012 the applicant applied to this Office for a review of the HSE's decision.
During the course of the review and following correspondence with Mr Séan Garvey of this Office, the HSE released two further records, namely record 56 from File 1 and record 48 from File 2. Mr Garvey subsequently contacted the applicant and outlined his preliminary view that nothing further fell for release. On 4 June 2013, the applicant wrote to this Office seeking a formal decision on his application for review.
I have now decided to conclude this review by way of a formal binding decision. In carrying out my review, I have had regard to the correspondence between the HSE and the applicant, to correspondence between this Office and the applicant and to correspondence between this Office and the HSE. I have also had regard to the provisions of the FOI Act. In referring to the records at issue, I have adopted the numbering system used by the HSE in its correspondence with the applicant.
The HSE refused access to the following records, either in whole or in part, from file 1:
Records 21 to 44 (section 22(1)(a))
Records 171,177,218,220,319,336 and 338 (section 26(1))
Records 16, 55, 61, 89, 90, 97, 99, 106, 109, 110, 130, 133, 174, 175, 190, 193, 196, 206, 208, 211, 212, 225, 229, 248, 251, 252, 254, 259, 262, 263, 264, 266, 268, 270, 272, 273, 275, 278, 279, 283, 284, 285, 289, 290, 295, 299, 308, 312, 317, 318, 325, 327, 328, 329(b) ,336, 336(d), 336(e), 336(f), 336(g), 390, 391, 392, 396 and 402 (section 28(1)).
Records 4, 88, 93, 166 and 173 (section 26(1))
Records 1, 2, 8, 11, 12, 15, 19, 27, 38, 42, 43, 49, 57, 59, 61, 65, 66, 67, 78, 80, 81, 82, 85, 91, 94, 95, 96, 97, 98, 102, 111, 112, 113, 114, 115, 116, 117, 118, 124, 134, 147, 157, 158, 162, 163, 166, 167, 170, 178, 179, 180, 182, 188, 222, 223, 225 and 229 (section 28(1)).
Accordingly, the scope of this review is concerned solely with the question of whether the HSE was justified in deciding to refuse access, in whole or in part, to the records identified.
Records refused under section 22
Section 22(1)(a) of the FOI Act provides for the mandatory refusal of a request if the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication, namely communications made between the client and his/her legal adviser for the purpose of obtaining and/or giving legal advice, and communications made between the client and a legal adviser or the legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation. Having examined records 21 to 44, it is clear to me that they do not come within either of the relevant categories. I find, therefore, that section 22(1)(a) does not apply.
However, it seems to me that section 22(1)(b) is the more relevant exemption for consideration in this case. In considering this provision, I should explain that the Courts have recognised that the review by this Office is by way of a hearing de novo in the light of the facts and circumstances applying at the date of that review. I am satisfied , therefore, that it is open to this Office to consider the application of particular provisions of the FOI Act not previously relied on by a public body. Section 22(1)(b) of the FOI Act provides that a public body shall refuse to grant a request for records if the records concerned are such that the public body knows or ought reasonably to have known that their disclosure would constitute contempt of court. I note that the records in question were previously disclosed to the applicant on foot of an order made by a District Court judge in summary proceedings involving the applicant as defendant. It seems to me that the release of those same records to the applicant under the FOI Act, which places no restrictions on the future use of records disclosed, without the prior approval of the Court would constitute contempt of court. I find, therefore, that the records in question are exempt from release under section 22(1)(b) of the FOI Act.
The HSE also withheld the records on the basis of the exemption contained in section 23(1)(aa). As I have found section 22(1)(b) to apply, I do not consider it necessary to examine the applicability of section 23(1)(aa) in this case, although it is difficult to see how that exemption might apply in circumstances where the records were previously disclosed to the applicant.
Records refused under section 26
Section 26(1)(a) of the FOI Act, which provides for the mandatory refusal of a record containing information:
Section 26(1)(b) is a mandatory exemption that applies where disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment or otherwise by law.
However, section 26(2) provides that subsection (1) shall not apply to a record which is prepared by a head, directors or staff members of a public body, or a person who is providing a service for a public body under a contract for services in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body, or a head, director, or member of staff of a public body, or someone who is providing or provided a service for a public body under a contract for services.
The records at issue in this case were prepared by staff members of the HSE. Accordingly, for section 26(1) to apply, the release of the records must constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than the HSE or its staff. In this instance, any duty of confidence would be based, not on any specific agreement or enactment, but on equity. For a breach of duty of confidence based on the principles of equity to arise, Megarry J., in the case of Coco v. A. N. Clark (Engineering) Limited  FSR 415 states that three essential elements must be established:-
"[T]hree elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it." (pp. 419 to 420). (Approved of by Costello J. in House of Spring Gardens Limited v. Point Blank Ltd.  IR 611)
I note that section 43(3) of the Act requires that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. This constraint means that, in the present case, the extent of the reasons that I can give for my decision is limited. Having regard to the contents of the records at issue, I am satisfied that all three elements as outlined by Megarry J. are satisfied in this case. Accordingly, I find that the requirements for an equitable duty of confidence are met in this case and that section 26(1)(b) therefore applies.
Records refused under Section 28
Section 28(1) provides that a public body shall refuse to grant access to a record where access would involve the disclosure of personal information of an individual other than the requester. Section 28(5B) of the FOI Act provides that where a record contains joint personal information, i.e. personal information about two or more individuals, third party information must, subject to the other provisions of section 28, remain protected. While personal information can be released if the person to whom it relates consents to its disclosure, as a general rule, the release of joint personal information requires the consent of all of the individuals to whom it relates, unless under section 28(5) of the FOI Act:
(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 information withheld from the relevant records in this case under section 28 comprises either personal information relating to third parties or joint personal information relating to the applicant and other parties. I do not accept that the grant of the information would be to the benefit of the third parties to whom the information relates. I find, therefore, that section 28(5)(b) does not apply. On the matter of where the balance of the public interest lies, I accept that there is a public interest in individuals accessing their own personal information and in optimising openness and transparency in how public bodies carry out their functions. Weighing against release of the information at issue, on the other hand, is the very strong public interest in protecting privacy rights, which is reflected both in the language of section 28 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"). 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. Section 28 expressly provides for the protection of personal information relating to third parties. In my view, the public interest in protecting the privacy rights of the third parties to whom the information relates outweighs, on balance, the public interest in granting access. I find, therefore, that the information at issue is exempt from release under sections 28(1) and 28(5)(B) of the FOI Act.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse access to the records sought by the applicant in this case.
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 not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.