Case number: OIC-117811-T7X2R5

Whether the HSE was justified, under sections 35(1)(a) and 37(1) of the FOI Act, in refusing access to certain records relating to a concern raised with an Adult Safeguarding and Protection Team regarding the care of the applicant’s brother

 

5 August 2022

 

Background

The applicant is a carer for his brother who has a disability. In a request received by the HSE on the 14 June 2021, the applicant referred to a complaint that had been made to the HSE’s Adult Safeguarding and Protection Team and he sought access to various records, from December 2020 to May 2021, relating to that complaint and to the subsequent investigation of the complaint.

In a decision dated 1 July 2021, the HSE part-granted the request. It released 15 records in part, with personal information of third parties redacted under section 37(1) of the FOI Act, and withheld three records in full under sections 35(1)(a) and 37(1). The applicant sought an internal review of that decision on 22 July 2021, following which the HSE affirmed its decision. On 6 January 2022, the applicant applied to this Office for a review of the HSE’s decision.

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 applicant. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by the HSE when processing the request.

Scope of Review

This review is concerned only with whether the HSE was justified in refusing to release:

  • Records 1-15, in part, under section 37(1) of the FOI Act
  • Record 16, in full, under section 37(1) of the Act, and
  • Records 17 and 18, in full, under sections 35(1)(a) and 37(1) of the Act. 

Preliminary Matters

Firstly, I wish to acknowledge that in his application for review and submissions to this Office, the applicant set out further background to his FOI request explaining that someone had written to the Adult Safeguarding and Protection Team raising concerns about the care that he was providing for his brother. Following an investigation including a visit to the house by a social worker, the case was closed. However, the applicant described the whole experience as very distressing and he felt that his character had been questioned and sullied. He raised concerns about family carers and how they are not safeguarded against complaints that prove to be unwarranted.

While I appreciate the applicant’s desire to access the records in full, section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, it is important to note at this point that any reason that the requester gives for the request shall be disregarded. This means that I cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.

Secondly, it is important to note that while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to section 25(3) which requires that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. For this reason, the description I can give of the records at issue and of the reasons for my decision is somewhat limited.

Thirdly, section 18 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 18 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. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Lastly, it is important to note that the release of records under the FOI Act is regarded, in effect, as release to the world at large, given that the Act places no restrictions on the uses to which records released under FOI may be put.

Analysis and Findings

Section 37 – Personal Information

Section 37(1)

The HSE refused access, under section 37(1) of the FOI Act, to records 1-15 in part and to records 16-18 in full. Section 37(1) 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, including personal information relating to a deceased individual. 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).

In essence, this means that section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester. However, if that personal information is inextricably linked to personal information relating to parties other than the applicant, then section 37(1) applies.

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, (xii) 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 FOI body concerned relates to the individual, and (xiv) the views or opinions of another person about the individual.

Certain information is excluded from the definition of personal information in section 2. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers). In a case where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract, or anything written in the course of providing that service, is also excluded from the definition of personal information (Paragraph II refers). In communicating with the Investigating Officer, the HSE confirmed that two GPs whose names had been redacted from the records were providing GMS services, which would exclude their names from the definition of personal information. The HSE said that, upon review, this information could have been released.

In its submissions to this Office, the HSE described the remaining records as being records of consultations, telephone conversations, emails, and home visits all regarding the function and role of its Safeguarding and Protection Team. It said that the records contain identifiable and personal information of third parties. Having examined the remaining withheld information, I am satisfied that it comprises either personal information relating solely to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to personal information relating to other identifiable individuals i.e. joint personal information. I am satisfied that the release of any or all of the withheld information would involve the disclosure of personal information relating to individuals other than the applicant (i.e. the applicant’s brother who he cares for, the applicant’s deceased mother, and the person(s) who raised the concerns with the Safeguarding and Protection Team). While it may be the case that a considerable amount of the withheld information is generally known to the applicant, I must have regard to the fact that a record released under the FOI Act effectively amounts to disclosure to the world at large.

In the circumstances, I find that section 37(1) applies to all the information withheld by the HSE apart from the names of the GPs.

Section 37(2)

Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances provided for in section 37(2) apply to the information concerned. 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 their 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)

Section 37(5) 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. No evidence has been put forward to suggest that the release of the records at issue would be to the benefit of the third parties concerned and I find that section 37(5)(b) does not apply in this case.

As to whether section 37(5)(a) applies, the question I must consider is whether the public interest in releasing the information outweighs, on balance, the public interest in protecting the privacy rights of the individuals to whom the information relates. I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] 1 I.R. 729, [2011] IESC 26) (“the Rotunda case”). It is noted that a true public interest should be distinguished from a private interest.

In considering the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have also had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in 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 his submissions to this Office, the applicant stated that the person or persons who contacted the HSE’s Safeguarding and Protection Team [about his brother’s care] provided them with information that was misleading. He said that he has been a family carer for over 20 years, one of over 500,000 such family carers in Ireland. He said that while all avenues were administered in protecting the person being cared for, and protecting the person who made the complaint, he believed that no such protection was afforded to him as the carer. He said that carers in Ireland provide a vital service and that they have not been safeguarded against complaints that prove to be unwarranted. He argued that it was in the public interest to provide access to the records in full on the basis that he was fully investigated and that the records were available to all concerned apart from him. He said that this showed the vulnerability of carers to potential false allegations. He said that future discussions in the Oireachtas regarding carers might open a debate on the safeguarding of carers.

The HSE, in its submissions, said that it did not consider there to be any public interest in releasing the personal information of the person who reported the concerns or the personal information of any other third parties. In reaching this conclusion, it argued that the applicant had a private rather than a public interest in the release of the information. It said that the public interest would be best served by the public being aware of the HSE’s safeguarding function and its role in protecting vulnerable persons, including by investigating concerns brought to its attention. It referred to the HSE’s ‘Safeguarding Vulnerable Persons at Risk of Abuse: National Policy & Procedures’ document which names confidentiality as one of its critical principles for the safeguarding of vulnerable persons from abuse. It said that information provided to a Safeguarding and Protection Team concerning any person considered at risk of abuse is provided in confidence and held in confidence and that this is required to maintain public trust in the Safeguarding Process. It said that such information will only be shared with relevant professionals and statutory authorities on a strictly need to know basis. It said that the applicant was provided with the information that he should have been made aware of, during the Safeguarding Process, and that this is borne out by the contacts made with him during that process. It said that any further disclosure of third party information would not result in any enhancement of transparency or accountability. Finally, the HSE said that it was conscious that release under FOI was essentially a release to the world at large and, as such, release of information of the type at issue in this decision, could prevent other persons from reporting concerns about vulnerable persons.

As noted earlier, I am required to disregard the applicant’s reasons for the FOI request. It is clear that the applicant has a private interest in accessing the withheld information, but he has argued that there is also a broader public interest in carers having access to information about concerns raised by another party about the care that they are providing, particularly when those concerns are investigated and found to be unwarranted. While the applicant speculated that the Oireachtas might, in the future, consider such an issue, I am not aware of any such public policy at the moment and in fact maintaining confidentiality is a key element of the HSE’s Safeguarding Process. It seems to me that the HSE endeavoured to strike a balance between making as much information as possible available to the applicant while seeking to protect the privacy rights of the relevant third parties. 

Having carefully considered the matter, I have not been able to identify any sufficiently specific, cogent and fact-based reason for finding that the public interest that the request should be granted outweighs the right to privacy of the individuals to whom the information relates. Accordingly, I find that the section 37(5)(a) does not apply.

Section 37(8)

Section 37(8) provides that, notwithstanding subsection (1), the Minister may make regulations for the grant of an FOI request in certain circumstances where the requester is the parent or guardian of the individual to whom the record relates or where the individual to whom the information relates is dead. The Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016) are the relevant regulations in this case (the Regulations).

The Regulations provide that a request for records which involves the disclosure of personal information of a deceased individual shall be granted where the requester is the spouse or the next of kin of the individual and the public body considers that, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request.

The records contain approximately ten references to the applicant’s deceased mother (there is a degree of repetition in the records). While at least four of these references appear to be linked to the personal information of the other third parties, the remainder relate to the applicant’s mother alone, or are linked with personal information relating to the applicant only.

The HSE has confirmed that it did not consider the applicability of the Regulations when processing the applicant’s request, as it was of the view that the applicant was seeking information relating to himself rather than about his brother or late mother. While it seems to me that the applicant would qualify as his mother’s next of kin for the purposes of the Regulations, I am not in a position to make a finding as to whether the applicant has a right of access to the records containing her personal information under the Regulations. In the circumstances, I consider that the appropriate course of action is to annul the HSE’s decision in part and remit the matter back to the HSE for further consideration in respect of section 37(8) and the associated Regulations. Specifically, I am annulling the decision in respect of the redacted references to the applicant’s deceased mother and remitting same to the HSE for consideration. In this respect, the HSE should also have regard to the relevant guidance published by the Minister.

The Regulations also provide that, subject to the other provisions of the FOI Act, a request shall be granted where the requester is a parent or guardian of the individual to whom the record relates and it is considered to be in the individual’s best interests to grant the request, if the individual belongs to one of the following classes of individual:

a. individuals who, on the date of the request, have not attained full age, or

b. individuals who have attained full age, being individuals who

i. at the time of the request have, or are subject to, a psychiatric condition, mental incapacity or severe physical disability, the incidence and nature of which are certified by a registered medical practitioner, and

ii. by reason of that condition, incapacity or disability, are incapable of exercising their rights under the Act.

The applicant is a carer for his brother who has a disability. It is not apparent to me, from a consideration of the records, that the applicant qualifies as his brother’s guardian or that it is likely that the records could fall for release to the applicant under these Regulations. However, it is open to the applicant to ask the HSE to consider the personal information relating to his brother under the Regulations if he is of the view that the Regulations apply.

Section 35 – Information obtained in confidence

As I have found section 37(1) to apply to records 17 and 18, I do not need to consider the applicability of section 35(1)(a) to these records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE’s decision. I find that it was justified, under section 37(1) and 37(7), in refusing to release personal information in the records relating to the applicant’s brother and to the person(s) who raised the concerns with the Safeguarding and Protection Team. I annul its decision to refuse to release the names of two GPs and direct that that information to be released. I also annul its decision to refuse to release personal information in the records relating to the applicant’s deceased mother and direct it to undertake a fresh decision-making process in respect of that information, having due regard to section 37(8) and the provisions of the Regulations.

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 by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Stephen Rafferty
Senior Investigator