Case number: 150030

Whether the Agency was justified in refusing the applicant's request for access to records relating to him and his daughter on the basis of sections 26 and 28 of the FOI Act

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

Background

In a request dated 20 March 2013, but not received by the Health Service Executive (the HSE) until 24 April 2013, the applicant sought access to details pertaining to a family conference held in relation to his daughter as well as all information pertaining to himself and "all documents legal or otherwise being used in Court of Law by the HSE pertaining to my daughters health and welfare." The applicant did not provide identification at the time of his request so the file was closed by the HSE. However, it was reopened when the applicant provided identification on 9 January 2014. In a telephone conversation with Nicola Peilow of the HSE on 10 January 2014 the applicant clarified that he sought access to social work records in relation to his daughter.

On 11 June 2014, a decision was made by the HSE to partially grant the request. On 7 July 2014, the applicant requested an internal review of that decision. The Agency carried out an internal review and notified the applicant of the outcome on 31 July 2014.

93 records were identified as being covered by the request at internal review stage. 30 records were released in full to the applicant, 51 were partially released and access to 12 records was refused in full on the basis of sections 26 and 28 of the FOI Act.

On 28 January 2015, the applicant applied to this Office for a review of the Agency's decision.

I have now completed my review in accordance with section 34(2) of the FOI Act. In carrying out my review, I have had regard to the provisions of the FOI Act and to the submissions made by the applicant. I have also examined the files which were provided to this Office for the purposes of the review and the correspondence that was exchanged between the parties.

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 and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review


This review is concerned with 63 social work records that relate to the applicant and his daughter and whether or not the Agency was correct to refuse, or partially refuse, access to those records on the basis of sections 26 and 28 of the FOI Act.

Analysis and Findings

Preliminary Matters
Before dealing with the relevant exemptions, there are some preliminary points I wish to make.

The first point to note is that, under section 8(4) of the FOI Act, the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act). It is worth mentioning that it is outside the remit of the Information Commissioner to carry out any investigation or make any findings on how the public body carried out its duties in the circumstances surrounding a review; rather, the Commissioner's role is to determine whether or not records were properly withheld.

The second point has to do with the extent to which it is feasible to provide access to parts of records while refusing access to the remaining parts. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 of the FOI Act 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.

Finally, while I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the circumstances of their creation is somewhat limited.

Section 28 and Personal Information

The records at issue relate to social work involvement with the applicant, his former partner and their daughter, who resides with her maternal grandparents. I consider that section 28, which is a mandatory exemption, is the most appropriate exemption to examine 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 "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. In light of that definition and having examined the records, I am satisfied that the records in this case contain personal information or joint personal information relating to third parties, as well as the personal information of the applicant. It may well be the case that a considerable amount 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.

It may be possible to extract occasional sentences or parts of sentences from the records and argue that they comprise personal information relating solely to the applicant. As noted above, however, the records on the files relate primarily to the applicant's daughter, her mother and her grandparents, and their interactions with the Agency and the HSE. It seems to me that, having regard to the context of their creation, none of the records within the scope of this review contain information which is personal information relating solely to the applicant. Much of the content is the personal information of the applicant's former partner as well as of her parents as a result of the applicant's child residing with them. Given the context of the information, most of it can be described as joint personal information. I am satisfied that these records contain information which constitutes either (a) personal information relating to other persons solely, (b) joint personal information relating both to the applicant and those other persons or (c) joint personal information relating both to the applicant's daughter 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.

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 records to which I have found section 28(1) and/or section 28(5B) 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 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.

In relation to 28(2)(b) and consent, there is no evidence that the child's mother or her parents have consented to their personal information being disclosed. I find, as a matter of fact, that neither the child's mother nor her parents have consented to the release of their personal information and that, accordingly, section 28(2)(b) does not apply.

As regards section 28(2)(e), I have no reason to believe that the release of any of the personal information in question here is "necessary in order to avoid a serious and imminent danger to the life or health of an individual". I find, therefore, that section 28(2)(e) does not apply in this case.

Section 28(5)

As set out above, where the requester's personal information is inextricably linked with the personal information of one or more third parties, as is the case here, then section 28(5B) of the FOI Act applies. Section 28(5B) of the FOI Act provides that where a record contains joint personal information, that is, personal information about two or more individuals, third party information must, subject to the other provisions of section 28, remain protected.

Under Section 28(5), however, access to the personal information of a third party may be released where, on balance:
(a) 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, 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 release of these records to the applicant would benefit his daughter's mother or her family members. I find therefore that section 25(5)(b) does not apply in this case.

Public Interest

In order to apply the public interest test provided for at section 28(5)(a), it is necessary to identify the public interest which would be served by the release of the records and make a judgement as to whether, on balance, that public interest outweighs the public interest in protecting the privacy rights of the individuals concerned. The FOI Act itself recognises a very strong public interest in protecting privacy rights, as 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"). 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. 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 the right to privacy.

The applicant has highlighted the importance of the public interest in the exercise of public functions. The FOI Act itself reflects a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business. Thus, in this case, I find that there is a general public interest in openness and accountability as to the manner in which the HSE carried out its functions in relation to the applicant and his child. There is also a public interest in promoting procedural fairness where a public body engages with a member of the public in a context which may carry adverse consequences for that individual.

I am satisfied that the public interests in this case in openness, accountability and fair procedure have been met already to a considerable extent. A substantial number of records has been released by the Agency to the applicant. I am not satisfied that the significant invasion of the privacy rights of the applicant's former partner and other family members, which would be the consequence of releasing the records at issue here, is warranted. Having considered the matter very carefully, I find in this case that the public interest that the request should be granted does not outweigh the public interest that the right to privacy of the individuals to whom the information relates should be upheld. I find therefore that section 28(5)(a) does not apply in this case.

Section 28(6) - Access by parents or guardians to the personal information of minors
I address this subsection of section 28 of the FOI Act given that it is a specific provision whereby parents and guardians can, in certain circumstances, gain access to their children's personal information. Section 28(6) provides that, notwithstanding subsection (1), the Minister for Finance may provide by regulations for the grant of access where "the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual". The FOI Act 1997 (Section 28(6)) Regulations, 2009 (S.I. No. 387 of 2009), in turn, make provision for access by parents or guardians to personal information in relation to minors in certain circumstances.

The Regulations provide that a request for records relating to personal information about a minor shall be granted where the requester is the minor's parent or guardian and where, having regard to all the circumstances and to any guidelines drawn up and published by the Minister, access to the records would be in the minor's best interests. Guidance Notes published by the Minister specify certain factors to be taken into consideration in determining:

  • whether the minor would consent to release of the material,
  • whether release of the material would damage the minor in some way and
  • whether the records are held in the minor's own right.

 

Furthermore, in its judgment in the case of McK v. The Information Commissioner[2006] 1 I.R. 260, the Supreme Court commented that the views of a minor nearing the age of majority on the question of the release of information affecting his privacy rights are "very relevant". In that case, the Supreme Court held that a parent is entitled to a rebuttable presumption that access to his or her child's medical information is in the best interests of the child. The Supreme Court explained: "The presumption is that the release of such medical information would best serve the interests of the minor. However, evidence may be produced that it would not serve her interests, and, in considering the circumstances, her welfare is paramount."

In the particular circumstances of this case, I have considered whether there is any remaining information in the records, not otherwise found to be exempt from release, to which the provisions of section 28(6) would apply, i.e. is there any personal information of the applicant's minor child which could possibly be considered for release under this provision. Taking into consideration the position as regards sections 13 and 28(5) as set out above, I am satisfied that any remaining information in the records about the child of the applicant is so intertwined with the personal information of the applicant's former partner and her parents that it would be impractical to isolate it for release in any manner which would not make the information misleading.

Overall Finding

In summary, I find that section 28(1) and/or 28(5B) apply and that none of the exceptions under section 28 apply to the records at issue.

Other exemptions claimed

As I have found that the records at issue are exempt from release under section 28, it is not necessary for me to consider the applicability of any other exemption cited by the Agency for withholding such information.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Agency to refuse access to the records at issue in this case on the basis of section 28 of the Act.

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. Such an appeal must be initiated not later than eight weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator