Case number: 130112
In two requests dated 21 September 2012, the applicant sought access to records and other information relating to complaints made by or against him at a named hospital (the Hospital). The applicant's complaints, in turn, related largely to the care and treatment of his late mother, who was a long-term patient in a certain unit of the Hospital. The HSE did not deal with the applicant's requests in a timely manner, but in a belated internal review decision dated 16 January 2013, the HSE granted the applicant's requests in part, but refused access to certain specified records in full or in part under section 28 of the FOI Act on the basis that they contained personal information relating to individuals other than the applicant or his late mother. Access to a small number of records was also refused under section 22(1)(a) of the FOI Act on the basis of legal professional privilege.
In May 2013, the applicant applied to this Office for a review of the HSE's decision dated 16 January 2013. He also made a third request for access to records and other information relating to complaints made by or against him at the Hospital, but with a particular focus on complaints processes involving a named Director of Nursing. Referring to the records released in January 2013, the HSE refused the applicant's third request under section 10(1)(a) of the FOI Act on the basis that no further relevant records existed. Subsequently, on 4 November 2013, the applicant made an application for review to this Office in relation to the refusal of his third request. In the circumstances, this Office decided to deal with the cases together as a composite review.
During the course of the review, the HSE reconsidered its position in the matter and agreed to release additional records to the applicant subject to the redaction of staff names and information relating to other patients of the Hospital. The HSE also located further relevant records following a new search carried out at the request of this Office; on 24 October 2014, the HSE confirmed that these records were released to the applicant together with the previously exempted records subject to the redaction of staff names, other patient information, and information unrelated to the complaints made by or against the applicant.
On 16 October 2014, Ms. Melanie Campbell, Investigator, wrote to the applicant to clarify the scope of the review and to notify him of her preliminary view on the matter. In Ms. Campbell's view, the HSE's decision to refuse access to the records remaining at issue was justified under sections 22(1)(a), 28, and 10(1)(a) of the FOI Act. In his reply, the applicant submitted information relating to the alleged misconduct of certain staff members towards his mother on 26 August 2012. The applicant's reply also includes statement disputing the description given of his behaviour in an email from a member of the Hospital's security firm to the Hospital Manager. He indicated that he would be happy to accept a binding decision provided that his complaints were investigated.
However, it was explained to the applicant in a letter dated 21 May 2013 that the Office of the Information Commissioner is separate from the Office of the Ombudsman. Ms. Campbell also explained to the applicant in her letter dated 16 October 2014 that it is not within the remit of the Commissioner to investigate complaints against public bodies. Accordingly, with the authority delegated to me by the Commissioner, I have decided to conclude the matter by way of a formal, binding decision on the basis of the information now before me. In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.
In his requests, the applicant sought information or clarification about the manner in which the Hospital dealt with the complaints made by or against him. As Ms. Campbell explained in her letter dated 16 October 2014, the FOI Act includes a provision (section 18) which entitles applicants to a statement of reasons for acts affecting them in certain circumstances. However, to avail of this right - which is separate from the right of access to records (section 7) - the request must be stated to be one made under section 18 (FOI Act, 1997 (Section 18) Regulations, 1998 (S.I. No. 519 of 1998) refer). In the circumstances, the HSE correctly treated the applicant's requests as requests for access to records which may contain the reasons or information sought about the manner in which the Hospital dealt with the complaints.
Adopting the numbering system used by the HSE in the schedule of records made available to the applicant, and having regard to the HSE's recent release additional records to the applicant, the issue now before me is whether the HSE's decision to refuse access to the following was justified:
records number 38-39, 221-222, and 249-250
the staff names and names of other patients redacted from the records that the HSE agreed to release
any further records that existed as of the date of the applicant's requests relating to the complaints made by or against him at the Hospital.
Records 38-39 and 221-222 are records communication with the Hospital's legal advisor in which legal advice was sought and provided. Section 22(1)(a) states that access shall be refused to records which 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:
confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice, and
confidential communications made between the client and a professional legal adviser or the professional 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.
Unlike several other of the exemptions in the FOI Act, the provision at section 22(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest.
Based on my examination of records 38-39 and 221-222, I accept that they would be exempt from production in proceedings in a court on the ground of legal professional privilege. I therefore find that section 22(1)(a) applies as claimed.
As noted above, the HSE's initial refusal of access was based largely on section 28 of the FOI Act. The HSE has since made an additional claim for exemption in relation to the redacted staff names, but I agree with Ms. Campbell that section 28 remains the more appropriate ground for refusal in relation to the staff names, the names of other patients, as well as to records 249-250.
Section 28(1) of the FOI Act provides that a public body shall refuse a request where access would involve the disclosure of personal information relating to an individual other than the requester. Section 28(5B) of the FOI Act provides that, where a record contains what is referred to as "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.
For the purposes of the FOI 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 a public body on the understanding that it would be treated by it as confidential. The FOI Act details twelve specific categories of information which is personal without prejudice to the generality of the forgoing definition, including "(i) information relating to the educational, medical, psychiatric or psychological history of the individual, . . . (iii) information relating to the employment or employment history of the individual, . . . (vi) information relating to the religion, age, sexual orientation or marital status of the individual", . . . (x) 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 public body concerned relates to the individual, . . . [and] (xii) the views or opinion of another person about the individual".
In this case, I find that granting access to the redacted staff names, the name of any other patient, and to records 249-250 would involve the disclosure of personal information relating to third party individuals and that section 28(1) therefore applies. The redacted staff names appear in the context of complaints and grievances in which they were involved. I note that previous decisions of the Commissioner have accepted that references to public servants alleging that the public servant behaved badly or inappropriately constitute the personal information of those public servants. The name of and information relating to any other patient of the Hospital is information that is expressly included in the personal information definition. Records 249-250 refer to concerns raised about another patient of the Hospital who was allegedly photographed by the applicant. It is apparent that the applicant is already aware of the names of the most, if not all, of the individuals involved; nevertheless, I am mindful that, in the case of FOI, records are released without any restriction as to how they may be used and, in effect, FOI release is regarded as release to the world at large.
As a general rule, personal information about an individual can be released to a third party without the individual's consent only where the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld. Although section 28(2) of the Act provides for certain exceptions to this rule where, for instance, "disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual", I am satisfied that none of the exceptions is applicable in this case. For the sake of completeness, I also note that I see no basis for concluding that granting the applicant's requests would be to the "benefit" of the third party individuals involved (section 28(5)(b) of the FOI Act refers).
On the matter of where the balance of the public interest lies, I note that the FOI Act recognises a very strong public interest in protecting privacy rights and this 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. In this case, I am aware of no public interest in granting access to the personal information at issue that would outweigh the public interest in upholding the privacy interests of the third parties concerned. Accordingly, I am satisfied that the HSE's decision to refuse access to the staff names, the names of other patients, and records 249-250 was justified.
The HSE claims that section 10(1)(a) applies to any additional records that the applicant may seek relating to complaints made by or against him at the Hospital. Section 10(1)(a) provides that access to a record may be refused if "the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken". In cases such as this, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public body in looking for relevant records. The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the records management practices of the public body insofar as those practices relate to the records in question. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records.
As Ms. Campbell also explained, in implementing the terms of the FOI Act, the Commissioner is primarily concerned with ensuring public access to extant records in accordance with the provisions of the Act. The Act does not provide for a right of access to records which ought to exist. Therefore, the Commissioner does not have the authority to require a public body to create records where such records do not exist or are not held by it. It is also outside the function of the Information Commissioner to adjudicate on how public bodies perform their functions generally.
In this case, the HSE provided a detailed description in its submissions dated 5 September 2014 and 29 September 2014, respectively, of the steps taken to search for further records relevant to the applicant's requests. The search details were related to the applicant in Ms. Campbell's letter dated 16 October 2014 and need not be repeated here. In sum, the search included a file of documents stored in the Hospital Archives, the files/records relating to the applicant that are held by the Director of Nursing, the database of the records of the Incident Review Group, the Adverse Event Register, and also the database for behaviours/assaults maintained by the Clinical Nurse Specialist in Behavioural Therapy. As the applicant is aware, additional relevant records were located and released to him in full or in part. Based on the HSE's submissions, I am satisfied that all reasonable steps have been taken to search for any further records relevant to the applicant's requests and that section 10(1)(a) applies to any additional records that the applicant may seek.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decisions of the HSE 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 after notice of the decision was given to the person bringing the appeal.