Case number: 130317

Whether the HSE was justified in its decision to refuse access to records relating to the applicant on the basis that the records are exempt under section 21(1)(a) of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, authorised by the Information Commissioner (the Commissioner) to conduct this review

Background

The applicant made an FOI request to the HSE on 26 August 2013 for access to any information kept on him on computer or in manual form. The HSE clarified that the records requested were social work records and issued a decision on 4 November 2013 refusing access on the basis of section 10(1)(a) of the FOI Act as no records could be found at the Primary Care Social Work Department, North Dublin. In his internal review request the applicant said that the information requested contains allegations of a criminal nature made against him by his named brother who lives in the UK. He also named two HSE officials who held the information. On 3 December 2013 the HSE varied its original decision and released records mainly comprising correspondence between the applicant and the HSE. However, it did not state if any additional records within the scope of the request existed.
On 9 December 2013 the applicant applied to this Office for a review of the HSE's decision. He stated that he was not satisfied with the HSE decision and that his application refers specifically to allegations made by his brother to the HSE.
The HSE, in its submission to this Office on 27 January 2014 stated that "the records held by the HSE in the applicant's name are held in a file opened in his mother's name in the context of an allegation around his alleged mistreatment of her. The allegations were brought to the attention of the HSE by the applicant's brother and were the subject of an elder abuse investigation by the Primary Care SW Department." It relied on section 21(1)(a) of the FOI Act to refuse access to these records.
On 3 October 2014, Ms Alison McCulloch, Investigator in this Office wrote to the applicant outlining her preliminary views on this case. Since no response was received to that letter, I consider that the review should now be brought to a close by way of a formal, binding decision.
In reviewing this case I have had regard to the following:
the HSE's decision on the matter;
the HSE's communication with this Office;
the applicant's communications with this Office;
communications between the applicant and the HSE on the matter;
the content of the withheld records, provided to this Office by the HSE for the purposes of this review.

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.

Scope of the Review

This review is concerned solely with the question of whether the HSE was justified in refusing access to records which refer specifically to allegations against the applicant made by the applicant's brother to the HSE.

Analysis and Findings

Section 13
Firstly I should draw attention to section 13 of the FOI Act which 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. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 13 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, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Section 28
While the HSE relied on section 21 of the FOI Act to refuse access to the withheld records, I am satisfied that section 28, which is a mandatory exemption, is the more appropriate exemption to apply in this case given the extent of personal information that appears in the records.

Section 28(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. In a situation 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 28(5B) provides for the refusal of a request for information which, if released, would result in the disclosure of personal information about other parties as well as about the requester.

The FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated 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 and "(ii) information relating to the financial affairs of the individual".

In light of that definition, I accept that the records in this case contain personal information or joint personal information relating to third parties. It may well be the case that much of the withheld information is generally known to the applicant. Nevertheless, I must consider that, when a record is released under the FOI Act, this, in effect, amounts to disclosure to "the world at large", as the Act places no restrictions on the subsequent uses to which the record may be put.

The HSE sent the complete file it holds in the name of the applicant's mother to this Office for the purposes of this review. I have examined the records included in the scope of this review which refer specifically to allegations against the applicant made by the applicant's brother. It is possible to extract occasional sentences or parts of sentences from the records within the scope of this review and argue that they comprise personal information relating solely to the applicant. However, such information arose in the context of the welfare and care of the applicant's mother who is a third party. It is clear to me that although such information relates to the applicant, it also relates to the applicant's mother. In my view, given the context of the information, it may be more correctly described as joint personal information. It seems to me that, given their context and content, none of the records within the scope of this review contain information which is personal information relating solely to the applicant. I note that the personal information of other individuals, in addition to that of the applicant and his mother also appears in the records. In considering this aspect, I have taken account of section 13(2) of the FOI Act as referred to earlier in this decision. I am satisfied that these records contain information which constitutes either (a) personal information relating to other persons solely or (b) joint personal information relating both to the applicant and those other persons. Therefore, I conclude that, subject to the provisions of section 28(2) and section 28(5) which I examine below, the records are exempt from release on the basis of section 28 of the FOI Act and I find accordingly.

Section 28(2)
There are some circumstances, provided for at section 28(2) of the FOI Act, in which the exemption at section 28(1) does not apply. Having examined the details to which I have found section 28(1) and/or section 28(5B) to apply, I am satisfied that none of the circumstances identified at section 28(2) arise in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of that 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. No argument to the contrary has been made by the applicant, and I find that section 28(2) does not apply to the records at issue here.

Section 28(5) - The Public Interest
Under section 28(5), however, access to the personal information of a third party may be granted where:

(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 do not believe that the grant of the information would be to the benefit of the third parties concerned and the applicant has not argued that this would be the case.

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". I accept that there is a public interest in openness and accountability with respect to the performance by the HSE of its functions, The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business, including the HSE's conduct of investigations into allegations of wrongdoing involving an elderly person. It could be argued that there is also a public interest in those accused of wrongdoing being able to defend their good name. However, in this case, the applicant has been made aware of the complaint and it is also relevant to note that there is a public interest in safeguarding the flow of information (often involving sensitive family matters) to the HSE 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 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"). 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 consider that, in the circumstances of this case, the rights to privacy of the various third parties whose information is at issue outweighs the public interest in granting the applicant's request. I find accordingly.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the HSE in this case.

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. Any such 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.


Elizabeth Dolan
Senior Investigator