Case number: 170493
4 May 2018
On 18 April 2017, the applicants made an FOI request to the HSE for access to three categories of records comprising "evidence and documentation" of their alleged harassment or intimidation of HSE staff. A fourth category asked for the number of complaints made by HSE staff about the applicants to this effect. The final category asked for all "evidence and documentation" of those complaints. The HSE did not reply within the timeframe specified by the FOI Act, effectively refusing the request. The applicants sought an internal review on 19 June 2017. The HSE wrote to the applicants on 4 October 2017, saying that the "matters are now subjudice". It did not otherwise address the request or internal review application or make clear the level of records considered. However, the letter amounts to an internal review decision that effectively refused the request.
On 11 October 2017, the applicants sought a review by this Office of the HSE's refusal of their request.
The HSE subsequently provided this Office with 12 pages that comprised the records it had considered. On 16 November 2017, this Office issued a notice to the HSE under section 23 of the FOI Act, requiring it to give the applicants and this Office a statement of reasons for its refusal of those records. Separately, this Office asked the HSE to clarify certain matters, and invited it to make submissions to this Office on the FOI Act exemptions on which it appeared to be relying, as well as on section 37 (personal information) and on any other exemptions it considered relevant.
On 6 December 2017, the HSE wrote to the applicants, saying it had decided to reconsider its position on their request. The letter said that 94 records were considered relevant, some of which it was granting in full or in part. The HSE said it was refusing to fully grant the rest under sections 31(1)(a) (legal professional privilege) and 37 (personal information) of the FOI Act.
The HSE's submission to this Office of the same date gave the requested clarifications. However, it made no submission regarding the exemptions it had relied on.
I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to details of the above exchanges; and to correspondence between this Office, the HSE, and the applicants. I have had regard also to copies of the records considered by the HSE, and to the provisions of the FOI Act.
This review is confined to whether the HSE has justified its refusal to fully grant access to the 94 records.
As the applicants are aware, a number of the records (pages) are copies of each other and the HSE was inconsistent in the redactions it made to certain of the records and their copies. My review is confined to the right of access to withheld records or parts of records and will not consider information withheld from one record that was granted from another. I have no remit to consider how the HSE handled the FOI request or the applicants' explanations as to why various steps they have taken are justified.
Further to the HSE's letter of 6 December 2017, the applicants told this Office they do not consider the HSE to have taken reasonable steps to look for records relevant to their request. I accept that the applicants were not in a position to raise this matter at any earlier point in the FOI process, and, in the circumstances, I have included it in my review.
The applicants' views on the HSE or the actions of particular HSE staff are not relevant to this review. This Office has no remit to examine, or make findings on, such matters. Neither is it appropriate for me to direct the release of exempt information on the basis of the applicants' views, no matter how strongly held. Section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons for the request.
Section 18(1) provides that where an FOI request would fall to be granted "but for the fact that it relates to a record that is an exempt record, by reason of the inclusion in it, with other matter, of particular matter, the head of the FOI body concerned, shall, if it is practicable to do so, prepare a copy, in such form as he or she considers appropriate, of so much of the record as does not consist of the particular matter aforesaid and the request shall be granted by offering the requester access to the copy." Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).
While the HSE has released details from certain records while redacting other parts, this Office takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office 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.
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record.
Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large, a point that the applicants make themselves in their correspondence with this Office.
Adequacy of Search - section 15(1)(a)
The HSE's letter to the applicants of 6 December 2017 says that records 83-94 are relevant to part 1 of the request. These are the 12 records originally supplied to this Office. It says that records 1-82 are relevant to parts 2 and 3 (which the HSE considers to be interlinked) and that records 50-66 are relevant to parts 4 and 5, which the HSE also considers to be interlinked. The letter says that this Office's decision in Case 170092, which also involved the applicants and is available on www.oic.ie, found the HSE to have carried out adequate searches for similar records to those sought at parts 2 to 5 (section 15(1)(a) refers). The HSE says it therefore considered only records created from the date of the request in that case.
The applicants say that the HSE has not taken an objective understanding of their request and has considered records they do not believe to be relevant. For instance, they dispute the relevance of records 1-82 to their request at all, and say that records 85 to 94 are not relevant to part 1. They also say that records 83-84 are factual rather than derogatory and are, therefore, also irrelevant to part 1.
Further to section 12, a person who wishes to exercise the right of access must ensure that the request contains sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. Four parts of the applicants' request seek records comprising of "evidence and documentation" of various matters, and seem to me to require the HSE to identify what it believes to be the records concerned. While the applicants may disagree with what the HSE considers to be relevant records, in the circumstances I do not consider it necessary for the HSE to justify its views. Neither do I consider it appropriate or necessary for this Office to embark on an analysis of whether each record is of a sort that the applicants may consider to be covered by their request. Clearly, section 12 does not envisage such subjective judgements.
The applicants dispute that part 2 of their request sought the same records as those the subject of this Office's decision in Case 170092. Thus, they appear to argue that the finding in that case (i.e. that reasonable searches had been carried out for records covered by the request and that section 15(1)(a) applied) is not relevant to this review. They also say that part 4 seeks the number of complaints made and that the HSE has not dealt with this or with part 5.
As the applicants know, the HSE says that no further records of relevance to their request in this case exist. In summary, the HSE has told this Office that it holds all records relating to the applicants in one central repository, which it says it searched for records relevant to the request. It also says that, having checked with various offices within the HSE that the applicants had previously contacted, those offices do not hold any further records.
Finally, as already outlined, the HSE considers records 50-66 relevant to parts 4 and 5 of the request. While section 25(3) of the FOI Act means that I cannot describe the records concerned any further, it seems to me that the HSE's position is that no further records relevant to these parts of the request exist.
I note that the above details were put to the applicants, who did not comment further. I am satisfied in the circumstances of this case and based on the details summarised above, that the HSE carried out reasonable searches for records relevant to this request. I find that section 15(1)(a) applies.
Legal Professional Privilege - section 31(1)(a)
The HSE's letter of 6 December 2017 refers to pages 50-66 as being exempt under section 31(1)(a). However, the schedule to that letter says that section 31(1)(a) has been applied only to records 50-56, 60-61, 62-63, 64-65 and 66, and that record 59 is outside the scope of the request. In my view, record 59 is as relevant to the request as the other records over which legal professional privilege has been claimed. Furthermore, given the mandatory nature of section 31(1)(a), I will consider all of records 50-66 under this exemption.
Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
The HSE has not stated whether is relying on litigation privilege or advice privilege, or both. It has made no submissions as to why the relevant privilege(s) should be found to apply, other than referring to certain litigation. The applicants say that the litigation was initiated after they made their FOI request and question what litigation concerns these records.
As I have no reason to consider that the records were created for the dominant purpose of apprehended or threatened litigation, I will consider whether any of the records at issue might, on their face, attract legal advice privilege.
Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. The concept of "once privileged always privileged" applies where privilege is based on advice privilege, and thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. The Commissioner also takes the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.
I accept that records 50-66 contain details of legal advice sought by or provided to the HSE from/by its professional legal adviser or are part of a continuum of correspondence arising from an original request for legal advice. I consider them to attract advice privilege and therefore legal professional privilege. I find the records to be exempt under section 31(1)(a). I cannot consider the applicants' arguments as to why access should be granted in the public interest to records relevant to part 5 as section 31(1)(a) does not include a public interest override.
Personal Information - Section 37
The HSE has relied on section 37 in relation to the remaining records or parts of records (the records) to which it has refused access.
Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing the personal information of a party other than the person seeking the record.
"Personal information" is defined at section 2 of the FOI Act as "information about an identifiable individual that -
(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 a public body on the understanding that it would be treated by it as confidential"
Section 2 also lists 14 examples of what must be considered to be personal information. They include (ii), "information relating to the educational ... history of the individual", (iii) "information relating to the employment or employment history of the individual" and (xiv) "the views or opinions of another person about the individual". A further example is that at "(v) information relating to the individual falling within section 11(6)(a)". Section 11(6)(a) is concerned with personnel records of staff members of FOI bodies. Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.
Again, I am constrained in the description I can give of the withheld information. Having examined the records, I am satisfied that the withheld information falls into a number of the examples of what comprises personal information. Some details (including those withheld from a copy of the FOI request the subject of Case 170092) comprise names, educational details and grades of certain HSE personnel, while others detail events concerning certain HSE staff and/or make allegations about those staff. However, given the context in which the records containing the withheld details were created (i.e. that of the applicants' dissatisfaction with the actions of various public servants), I am satisfied that the withheld information is inextricably linked to personal information about the applicants and comprises joint personal information.
While section 37(2)(a) provides for the release of information relating to the requester, section 37(7) provides for refusal of a request where access to the record sought would, in addition to disclosing personal information relating to the requester, disclose personal information relating to individuals other than the requester (i.e. joint personal information).
I have also considered the exclusions to what is personal information where public servants are concerned. These narrow exclusions are also set out in section 2 of the FOI Act. In summary, the following do not constitute personal information: the name of the individual in the context of being a member of staff of an FOI body; information regarding the office, position or functions of that member of staff of an FOI body; the terms upon which the member of staff holds office or occupies a position and records created by that employee in the course of and for the purpose of, the performance of his/her functions.
Generally speaking, the exclusions to the definition of personal information are intended to prevent FOI bodies from relying on section 37 to refuse to grant access to records created by individual staff members in the course of their work. They also prevent FOI bodies from relying on section 37 to refuse to grant access to details in records that would identify the public servants who dealt with the matters the subject of those records. However, they do not deprive public servants of the right to privacy generally and I am satisfied that they are not relevant to my decision in this case.
The fact that the applicants created some of the records, or may have access to some of them outside of the FOI Act, does not mean that the records cannot be considered to contain joint personal information for the purposes of the FOI Act. Neither can I disregard section 37 because the applicants contend that their views on the actions of HSE staff members is in the public domain and "therefore legally publishable". Furthermore, even if any actions by HSE staff in this case were, as the applicants contend, malicious (which I have no remit to consider in any event), the withheld information would still be personal information relating to the staff concerned.
The applicants also argue that the redaction of certain information is futile. They say that by comparing the partially released records to records already fully granted under a previous FOI request, an HSE staff member is "easily identifiable." However, any decision the HSE may have made to grant access to information about a staff member further to another FOI request does not create a precedent that I must follow.
I find the withheld information to be exempt under section 37(1) of the FOI Act.
There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. I have already dealt with section 37(2)(a) and I am satisfied that the remaining circumstances do not arise in this case. That is to say, (b) that the third parties have not consented to the release of their personal 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.
While the applicants contend that their views on the actions of HSE staff members is in the public domain and "therefore legally publishable", this is not a sufficient basis on which I could find that sections 37(2)(c) and/or (d) apply.
Section 37(5) provides that a record, which is otherwise exempt under section 37(1), may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I do not consider that the release of the information at issue would benefit the third parties, as envisaged by section 37(5)(b) of the FOI Act.
On the matter of where the public interest lies, 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 1 I.R. 729,  IESC 26) (the Rotunda case). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.
I cannot take into account any private interests that the applicants may have in the grant of access to the withheld information, such as for the purposes of the ongoing litigation. Furthermore, the private interest that the applicants have in wishing to amend the withheld information further to the FOI Act does not equate to a public interest in the disclosure to the world at large of personal information about other parties.
The applicants are clearly dissatisfied with the HSE's handling of certain matters relating to them, and with various staff, and argue that this weighs in favour of granting access to the records. However, I have no remit to consider, or make findings on, the adequacy of the HSE's actions (or those of its staff) vis the applicants, or its procedures for dealing with the matters concerned. It would not be appropriate for me to direct the release of third party personal information in the public interest, effectively to the world at large, on the basis of assertions to the effect that an FOI body's processes may have been inadequate or that it did not comply with fair procedures. As the Commissioner said in his composite decision in cases 090261/090262/090263, "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."
The applicants refer to comments made by this Office in certain cases regarding how those in receipt of public funds should have a diminished expectation of privacy. The comments were made in cases involving agricultural grant aid payments and the remuneration of the CEO of a public sector body. The records in this case were created in an entirely different context. I consider that the public servants involved, while paid from public funds, do not have any diminished expectations of privacy in relation to the details at issue in these records.
In the case at hand, there is a public interest in establishing that the HSE carried out its functions in dealing with the applicants in a way that was consistent with the principles of natural and constitutional justice. While this is of considerable weight in the circumstances, it has, in my view, has been served to some extent by the material released to date. I am not satisfied that directing that access be granted to the withheld information would significantly further this public interest.
On the other hand, 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).
The applicants argue that the right is not absolute, having regard to Ryan v Attorney General  I.R. 294. That judgment is concerned with fluoridation of water, rather than the disclosure of personal information to the world at large. While I accept that one's right to privacy is not absolute, when considering section 37(5)(a) privacy rights will 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 applicants contend that public servants are "open to a higher level of criticism than private individuals". However, the Commissioner has said in other cases (such as Case No 160509) that FOI is concerned with the activities of public bodies generally and is not necessarily a means by which all information about the activities of individual public servants is intended to be made known to the public at large. He has also said that, while sometimes information relating to the performance of individual public servants may need to be released in order to promote the openness and accountability of an FOI body, this would have to take account of the sensitivity of the information and the level of detail that would need to be released to satisfy the public interest in openness and accountability.
Given the sensitive context in which the records in this case were created, I am satisfied that placing the withheld information in the public domain would significantly breach the rights to privacy of the HSE staff concerned. I find that the public interest in favour of granting access to the withheld information does not outweigh the public interest that the right to privacy of the third parties should be upheld.
Finally, I would also add that I consider the records I have found to be exempt under section 31(1)(a) to also qualify for exemption under section 37(1) and that the public interest does not warrant their release for the reasons set out above.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE's refusal to fully grant the applicants' request. I find that the records withheld in full and in part are exempt under sections 31(1)(a) and 37(1) of the FOI Act. I also find that the HSE has carried out reasonable searches for records covered by the request and that section 15(1)(a) applies.
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.