Case number: OIC-138389-D5B2S3

Whether the HSE was justified, under sections 37(1) and 42(m) of the FOI Act, in refusing access to safeguarding records relating to an individual

 

9 February 2024

 

Background

In a request dated 8 September 2022, the applicants sought access to the file relating to their sister/sister-in-law (the individual) held by one of the HSE’s Safeguarding and Protection teams. The applicants made this request via their solicitor, and references to communications with the applicants should be taken to include communications with their solicitor, as appropriate. In a decision dated 10 October 2022, the HSE part-granted the request with certain information withheld under sections 35(1)(a) and 37(1) of the FOI Act.

On 1 November 2022, the applicants sought an internal review of that decision, making detailed arguments as to why they believed the decision to be in error. In summary, they stated that they had been appointed as attorneys for the individual pursuant to an Enduring Power of Attorney (EPA) registered in the High Court in May 2022. They said that, in these circumstances, they could not be denied access to the records on the basis of a duty of confidentiality owed to the individual. They said that the effect of the EPA was that they stand in the shoes of the individual and speak for her and represent her to the HSE and all other legal and natural persons with whom she has dealings. Similarly, they argued that they could not be denied access to personal information relating to the individual because, as her attorneys, they were entitled to access such information. They pointed to specific parts of records and specific redactions, which they argued indicated an inconsistent and incorrect interpretation of section 37. Under both sections 35 and 37, the applicants also argued that the records should be released, in full, in the public interest.

The HSE did not issue an internal review decision within the statutory time-frame and the applicants applied to this Office for a review on 19 December 2022. On 11 January 2023, further to communications with this Office, the HSE issued a letter to the applicants setting out its effective position on the request. It varied the original decision and released some additional information. For the records that remained refused, it amended the exemptions relied upon to sections 37(1) and 42(m). On 16 May 2023, the applicants informed this Office that they wanted the review to proceed.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the HSE and by the applicants and to the correspondence outlined above. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

When seeking submissions from the HSE, this Office sought clarification as to whether or not it was continuing to rely on section 35 as a basis for refusing access to records. While it did not explicitly address this query in its response, neither did it make any submissions on section 35. In these circumstances, I am taking it that the HSE is no longer claiming that the records are exempt under section 35.

This review is therefore concerned solely with whether the HSE was justified in refusing access to the outstanding records, under sections 37 and 42(m) of the FOI Act.

Analysis and Findings

Overview of the records at issue

Section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record. This means that I am constrained by the provisions of section 25(3) in terms of the level of detail I can give when describing the records at issue or, indeed, in referencing some of the arguments put forward by the HSE. However, I do not believe that I am in breach of section 25(3) by providing the following description and background to the records.

The records in this case comprise a safeguarding file relating to certain concerns raised about the applicants in respect of the individual towards the end of 2021. These concerns were referred to the HSE’s Safeguarding and Protection team. The HSE investigated these concerns, which included meeting with, and seeking information from, the applicants. Much of the communication was via the applicants’ solicitors. In September 2022, the HSE wrote to the applicants confirming that the individual’s case was closed by the Safeguarding and Protection team.

Section 37: Personal information

Section 37(1)

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), 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 known as joint personal information).

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual, (ii) information relating to the financial affairs of the individual, and (viii) information relating to … any disability of the individual.

As described above, the records in question relate to the implementation of the HSE’s safeguarding policy further to concerns being raised about the individual. Having carefully examined all of the records withheld in full or in part, I am satisfied that the majority of the withheld information comprises information relating to the individual that falls within the categories at (i), (ii) and/or (viii) of the definition of personal information at section 2 of the FOI Act. In addition to personal information relating to the individual, a small number of the records also contain personal information about other identifiable individuals. I find, therefore, that the release of any of the withheld records would involve the disclosure of third party personal information and that section 37(1) applies. However, that is not the end of the matter as section 37(1) is subject to the provisions of subsections (2), (5), and (8).  

Section 37(2)

Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. It has not been argued that any of the circumstances provided for in section 37(2)(a), (c), (d) or (e) apply in this case and, having considered the contents of the records, I am satisfied that they do not apply.

Section 37(2)(b) provides that section 37(1) does not apply if “any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester”. It is the applicants’ position that the EPA serves as consent to the release of the records.

An EPA is a legal device that can be set up by a person (the donor) to allow another person (an attorney), to look after their financial or personal affairs, in the event that they no longer have the capacity to do so themselves. The relevant legislation is the Powers of Attorney Act 1996 (the 1996 Act) and the Assisted Decision-Making (Capacity) Act 2015. An EPA that was made on or after 26 April 2023 only takes effect when the EPA has been registered with the Decision Support Service (DSS), the donor lacks decision-making capacity, and the Decision Support Service has been notified of the incapacity and it accepts the fact. An EPA made before 26 April 2023 only takes effect if registered with the Office of the Ward of Courts by the attorney, if the donor becomes incapable of managing their affairs.

In 2017, the individual appointed the applicants as her attorneys, should she end up in a situation where she was no longer able to make certain decisions for herself. The applicants registered the EPA in May 2022 in respect of the individual, following a deterioration in her health and functioning.  The EPA appoints the applicants as attorneys as follows:

“To act as attorneys jointly and severally for the purposes of Part 2 of the Powers of Attorney Act 1996 with general authority to act on my behalf in relation to all my property and affairs including authority to take on my behalf decisions on the following matters: -

1. To purchase any property, real or personal, for my use and benefit.

2. To dispose by way of Sale or Lease any property I may own and to invest the proceeds of Sale/Lease as required and to use the proceeds of Sale/Lease for my benefit during my lifetime.

3. To lodge money to any of my Bank Accounts and to make withdrawals thereto for my benefit.

4. To do anything and everything else that might be necessary to provide for my personal care and well-being by virtue of the exercise of this Power.”

The HSE said that it had varied its original decision to take account of the EPA. It said that as the EPA specifically related to the future care needs of the individual, it decided to release a limited amount of personal information which may be of assistance to the applicants in making decisions regarding her care and well-being going forward. It said, however, that in the context of the HSE’s commitment to the safeguarding of vulnerable persons, its position was that the EPA did not serve as consent for the release of all the records to the applicants.

It is not in dispute that the individual to whom the personal information relates did not provide specific written consent for the disclosure of her personal information to the applicants on foot of the specific FOI request made, and nor was she in a position to do so. Nevertheless, it is the applicants’ position that the EPA confers on them wide-ranging powers and that the EPA should serve as consent from the individual for the purposes of the FOI request. They queried how it could reasonably be contended that the power to “do anything and everything else that might be necessary to provide for [the individual’s] personal care and well-being” does not include the power to consent to access records under FOI. They said that the HSE had no legal basis in taking a position that the EPA does not serve as consent for the release of the records.

It seems to me that the HSE has accepted the EPA as consent for the release of certain records, i.e. the records that it considered could be relevant to the applicants in making decisions regarding the individual’s care and well-being going forward. What it did not do was accept that the EPA served as consent for the general release of all the records to the applicants under the FOI Act, and that is what I need to consider.

Section 6(1) of the Powers of Attorney Act 1996 (the 1996 Act) provides that:

“An enduring power may confer general authority (as defined in subsection (2)) on the attorney to act on the donor's behalf in relation to all or a specified part of the property and affairs of the donor or may confer on the attorney authority to do specified things on the donor's behalf and the authority may, in either case, be conferred subject to conditions and restrictions.”

Subsection (2) provides as follows:

“Where an instrument is expressed to confer general authority on the attorney, it operates to confer, subject to the restriction imposed by subsection (5) and to any conditions or restrictions contained in the instrument, authority to do on behalf of the donor anything which the donor can lawfully do by attorney.”

Subsection (6) provides that an EPA may also confer authority on the attorney “to make any specified personal care decisions or decisions on the donor's behalf”. A “Personal care decision”, is defined in section 4(1) as a decision on any one or more of the following matters:

“(a) where the donor should live,

(b) with whom the donor should live,

(c) whom the donor should see and not see,

(d) what training or rehabilitation the donor should get,

(e) the donor's diet and dress,

(f) inspection of the donor's personal papers,

(g) housing, social welfare and other benefits for the donor”.

Subsection (7), paragraph (a) provides that “Any personal care decision made by an attorney on behalf of a donor shall be made in the donor’s best interests”. Subsection (7), paragraph (b) provides that in deciding what is in a donor’s best interests, regard shall be had to the following:

“(i) so far as ascertainable, the past and present wishes and feelings of the donor and the factors which the donor would consider if he or she were able to do so;

(ii) the need to permit and encourage the donor to participate, or to improve the donor's ability to participate, as fully as possible in any decision affecting the donor;

(iii) so far as it is practicable and appropriate to consult any of the persons mentioned below, their views as to the donor's wishes and feelings and as to what would be in the donor's best interests:

(I) any person named by the donor as someone to be consulted on those matters;

(II) (II) anyone (whether the donor's spouse, a relative, friend or other person) engaged in caring for the donor or interested in the donor's welfare;

(iv) whether the purpose for which any decision is required can be as effectively achieved in a manner less restrictive of the donor's freedom o f action.”

Subsection (7), paragraph (c) provides that “In the case of any personal care decision made by an attorney it shall be sufficient compliance with paragraph (a) if the attorney reasonably believes that what he or she decides is in the best interests of the donor.”

Having regard to all of the above, I accept that the 1996 Act provides for a donor to confer very broad powers on the attorneys that they appoint to act on their behalf if they become mentally incapable of acting themselves. However, the powers are not unqualified and furthermore they can be restricted by any conditions specified in the EPA itself. Therefore, in establishing whether the individual can be deemed to have given consent for the release of the records at issue in this case, I consider it necessary to have regard to the specifics of her EPA in order to establish what powers she has vested in the applicants.

In relation to personal care decisions, the individual has specified in the EPA that she has given the applicants the authority “to do anything and everything else that might be necessary to provide for my personal care and well-being by virtue of the exercise of this Power.” While no specific reference has been made to the inspection of personal papers, which I note is an option included in the prescribed form to be used in making an EPA set out in the Enduring Powers of Attorney Regulations 1996 (SI 196/1996), given the definition of personal care decisions set out in section 4(1) of the 1996 Act as described above, I accept that the individual has given the applicants the authority to inspect her personal papers where that “might be necessary to provide for [her] personal care and well-being”. I also note that the 1996 Act provides that personal care decisions made by attorneys shall be made “in the donor’s best interests” and that it is sufficient that the attorney “reasonably” believe that what he or she decides is in the best interests of the donor.

In their submissions, the applicants argued that they required access to the records to perform their functions as the individual’s attorneys, so that they could understand how the concerns arose in relation to her and to take steps to avoid such concerns arising in the future, as well as to consider whether they should pursue a complaint against the HSE on behalf of the individual.

The Court of Appeal has considered the test to be used where the courts are asked to overturn the decision of attorneys in relation to a personal care decision for the donor. In CA v BW & MA [2020] IECA 250, the Court said:

“In the context of a decision of an attorney under the EPA, the review by the court can be formulated as follows: the decision must be manifestly not in the donor's best interests and so irrational that no attorney, acting reasonably in accordance with those interests, could have arrived at it. The precise application of that test will, of course, depend on the precise circumstances in which it falls to be addressed. However, the burden of meeting it is substantial, and will not be met by claiming that it is wrong, or that others might acting reasonably have reached a different decision or for that matter that the decision is not one that the donor himself or herself would have reached. If the decision is not unreasonable in that sense, the court must not intervene and give directions based upon its own view of what other course might be reasonable.”

In light of the Court of Appeal’s approach, and taking into account the reasons that the applicants have given for seeking access to the records issue, as well as the fact that the safeguarding file in this case was closed with no further action taken after the concerns were investigated, it seems to me that a deferential approach must be adopted in relation to the decision-making of the applicants in their capacity as attorneys for the individual. While the HSE decided that only some of the records contained information that might be relevant for the applicants in providing for the individual’s personal care and well-being, it is the applicants’ position that they require access to the full file. The inspection of personal papers is a personal care decision under the 1996 Act which expressly gives to the donor the power to decide who should make those decisions in his or her best interests and provides that the attorney’s decisions, made upon reasonable belief, amount to compliance with the Act. I accept that in appointing them as her attorneys, the individual has given the applicants the authority to make such decisions on her behalf, and it has not been established that the decision is “manifestly not in the donor's best interests and so irrational that no attorney, acting reasonably in accordance with those interests, could have arrived at it”.

For these reasons, I accept that the EPA must be accepted as consent by the individual to the disclosure of her personal information to the applicants. In these circumstances, I accept that section 37(2) applies which means that section 37(1) does not apply to the records containing personal information relating to the individual.

While both parties made submissions on sections 37(5) and 37(8) in relation to the individual’s personal information, there is no need for me to consider them here in circumstances where I have found section 37(1) not to apply to any personal information relating solely to the individual.

Other exemptions

Having found section 37(1) not to apply, it is open to me to proceed to consider and make a finding in respect of (i) the applicability of section 37(1) to the small amounts of personal information relating to third parties (i.e. neither the individual nor the applicants) or joint personal information (section 37(7) refers), given that the EPA does not serve as consent for the release of such information, and (ii) the applicability of section 42(m), which is concerned with the protection of sources of confidential information, to certain parts of the information and records at issue.

However, it seems to me that in doing so, I would be essentially ignoring the wider concerns the HSE appears to have in respect of how the release of any of the withheld information might impact on the integrity and effectiveness of its functions in relation to the investigation of allegations of abuse against vulnerable persons. Even if I was to find that certain parts of the records are exempt under sections 37(1) and/or 42(m), it seems to me that the HSE’s concerns around its safeguarding functions would remain as a result of my finding that certain records should be released.

In its submissions, the HSE raised concerns about the safeguarding process itself and the importance of it being able to carry out its functions in relation to the investigation of allegations of abuse against vulnerable persons. It argued that the release of certain information might prejudice the giving of similar information in the future and that this type of information is vitally important to the Safeguarding & Protection team in order that it carries out its functions in relation to the investigation of allegations of abuse against vulnerable persons. It seems to me that while the HSE’s concerns about its ability to ensure the integrity and effectiveness of its functions in relation to the investigation of allegations of abuse against vulnerable persons may well be valid concerns, they might be more properly protected by exemptions in the FOI Act other than sections 37 and/or 42(m).

I accept that there is a public interest in protecting the integrity of the safeguarding process for vulnerable persons and having given careful consideration to the various arguments and competing interests at issue in this case, I deem it appropriate to allow the HSE a fresh opportunity to consider its position on this matter.

It is relevant to note that under section 22(2) of the FOI Act, following a review the Commissioner may, as he considers appropriate, affirm or vary the decision of the FOI body or may annul the decision of the FOI body and, if appropriate, make such decision in relation to the matter concerned as he considers proper. In the circumstances, I consider that the most appropriate course of action is to annul the decision of the HSE and to direct it to make a fresh decision on the request, having regard to the contents of each individual record and my findings and comments set out above, and in accordance with the provisions of the FOI Act. The applicants will have a right to an internal review and a review by this Office if they are not satisfied with the fresh decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE’s decision. I find that it was not justified in refusing access to the records at issue under section 37(1) of the FOI Act and I direct it to make a fresh decision on the entire request.

Right of Appeal

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.

 

Stephen Rafferty
Senior Investigator