Case number: 150341
On 25 June 2015, the applicant submitted a request under the FOI Act for access to records held by the HSE concerning her employment with that body. The HSE identified six files which were associated with the applicant's request. The HSE released a number of records and part granted and refused access to others on the basis of sections 15(1)(a), 31(1)(a) and 37(1) of the FOI Act. The applicant submitted a request for an internal review in relation to files 2, 3 and 6. The internal reviewers affirmed the original decisions of the HSE. On 8 October 2015, the applicant made an application to this Office for a review of the HSE's decision.
In conducting my review, I have had regard to the submissions of the HSE and the applicant and to correspondence between the applicant and the HSE. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. I consider that the review should now be brought to a close by the issue of a formal, binding decision.
This review is concerned solely with whether the HSE was justified in deciding to refuse access to the records identified in files 2, 3 and 6, on the basis of sections 15(1)(a), 31(1)(a) and 37(1) of the FOI Act.
In her application for review to this Office, the applicant raised a number of issues about how her FOI request was processed by the HSE. I have examined those issues and I am satisfied that the HSE has acknowledged its failings in relation to its handling of the applicant's request, insofar as they are relevant to the FOI decisions under review, and has apologised for the confusion caused. The applicant also raised an issue of a potential conflict of interest at the internal review stage of her request. The HSE responded to the applicant on that issue and stated its FOI Officers are required to be impartial in consideration of their obligations as decision makers under the FOI Act. I would also note here that reviews carried out by this Office are de novo reviews, which means that the Commissioner considers all of the circumstances and information which exist on the date of a decision. I stress that the findings which follow concern the applicant's right to access records under the FOI Act and do not extend to her complaints concerning the HSE's handling of the matters which are the subject of those records.
First, I must consider whether the HSE was justified in its decision to refuse access to further records sought by the applicant under section 15(1)(a) of the FOI Act.
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for the records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website, www.oic.ie).
In her request for an internal review and in her submission to this Office, the applicant included references to 17 points. Most of those points referred to "discussions" and telephone conversations. In its internal review decision and in a submission to this Office, the HSE addressed the points raised by the applicant and provided details of the searches it undertook for records within the scope of the applicant's review. I do not propose to repeat all of those details here but I confirm that I have had regard to them for the purposes of this decision. In particular, the HSE stated that all copies of minutes within scope of the request were released to the applicant.
In addressing the matters of "discussions" and telephone conversations, the HSE stated that neither written records, nor audio recordings existed. The HSE also stated that it had carried out further searches of records held by the relevant departments and that generally, it is not the practice of HSE staff to make audio recordings. I have no reason to dispute this position. In view of the information provided by the HSE relating to the searches undertaken, I find that it has taken all reasonable steps to ascertain the whereabouts of relevant records and that it was, therefore, justified in its decision to refuse access to further records under section 15(1)(a) of the FOI Act.
Section 31(1)(a) is a mandatory exemption which protects records which would be exempt from production in proceedings in a court on the ground of legal professional privilege.
Legal professional privilege enables a client to maintain the confidentiality of two types of communication:
(a) confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and
(b) 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 (litigation privilege).
In its original decision, the HSE refused access to four records (no. 175 and 192-194 in file 3), on the basis of section 31(1)(a). In her internal review request, the applicant referred only to record 175. The applicant did not specifically identify any of the records exempted under section 31(1)(a) in her application to this Office. However, for the sake of completeness, I have addressed the decision of the HSE concerning record 175. Records 192-194, inclusive, are outside scope of this review.
The applicant asked for the "reason for [the] exemption being Legal Professional Privilege" concerning record 175. She also requested access to the record, if that record was created by a person who was not "acting in a legal capacity". The HSE stated in its internal review decision that the record was refused under section 31(1)(a) of the FOI Act, "in order to protect legal advice received from Solicitors engaged by the HSE".
Having examined the record, I am satisfied that it contains confidential legal advice, so that it falls within the first limb of legal professional privilege, so that the HSE was justified in refusing access to record 175, on the grounds of section 31(1)(a).
Section 37(1) of the FOI Act provides that an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Furthermore, section 37(7) provides that 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, commonly referred to as joint personal information.
The applicant did not specifically identify any of the records exempted under section 37(1) in her application to this Office, although she did highlight a number of records exempted under section 37 in her internal review request. Those records are in file 3, and are record nos. 118-119, 129, 154, 168-169a and 197-198. In her request, the applicant referenced 118-119 on a second occasion. However, I am satisfied that her description of the records meant that she intended to request access to records 197 and 198.
Having reviewed the relevant 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 the records at issue.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) 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) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance:
(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 release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.
In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.
In considering the public interest test at section 37(5)(a), I have had regard to the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner (available at www.oic.ie). 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).
The applicant stated that she was "concerned about documentation which has been put on my records or generated about me and not disclosed". It seems to me that this is, in essence, a private interest as opposed to a true public interest. Nevertheless, the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. On the other hand, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 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 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.
The information at issue in this case is of a private and personal nature. While there is a public interest in openness and transparency in the manner in which the HSE performs its functions, I am of the opinion that this has been met to some degree by the partial release of some of the records at issue. I do not consider that the public interest in the release of the redacted or refused information in this instance outweighs, on balance, the significant public interest in protecting the privacy rights of the individual/s to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.
Accordingly, I find that the HSE was justified in its decision to refuse access, in full or in part, to record nos. 118-119, 129, 154, 168-169a and 197-198, under section 37(1) of the Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE in this case.
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.