Case number: 180221

Whether the HSE was justified in refusing to fully grant the applicants' request for a report concerning their minor son

16 August 2018 

Background

On 22 December 2017, the applicants made an FOI request for a particular letter (the report) concerning their son's mental health. The request also asked for "any further information" the HSE could give them in relation to the report's contents. The HSE's decision of 14 March 2018 said that the report contains joint personal information and refused access to it under section 37 of the FOI Act. The applicants sought an internal review of this decision on 16 March 2018. The HSE's internal review decision of 30 April 2018 affirmed its refusal of the request. On 8 June 2018, the applicants sought a review by this Office of the HSE's decision. 

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 the above exchanges and to correspondence between this Office, the HSE and the applicants. I have had regard also to the provisions of the FOI Act and to the contents of the report. 


Scope of the Review

The HSE's FOI decisions are concerned only with the report and it appears to have taken the request for "any further information" as seeking information generally i.e. outside of FOI. I consider this to be a reasonable interpretation of the applicants' request, which they have not disputed. 

This review is confined to whether the HSE has justified its refusal to grant access to the report. It cannot take into account matters such as delays in the HSE's decision making process or any dissatisfaction that the applicants may have with the actions of the HSE or any of its staff generally. 


Findings

In making my decision, I must comply with section 25(3) of the FOI Act, which requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, the description I can give of the report and of the reasons for my decision is limited. 

Section 37(1) 

Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information.

I am satisfied that the report contains sensitive personal information about the applicants' son and/or sensitive personal information about him that is inextricably linked to personal information about the applicants. I find that section 37(1) applies. I will now go on to consider the circumstances provided for in other provisions of section 37 that serve to dis-apply section 37(1). 

Section 37(8) 

The applicants' son is almost 17. Regulations (Statutory Instrument No. 218 of 2016) have been made by the Minister for Public Expenditure and Reform under section 37(8) of the FOI Act, which provide for access by parents and guardians to records of minors and certain others. 

In summary, notwithstanding section 37(1), a parent is entitled to access the records of their child where the child has not attained full age at the time of the FOI request (i.e. is a minor) and where granting the request would, in the opinion of the head of the FOI body having regard to all the circumstances, be in the best interests of the child. 

The Supreme Court held in the case of McK v. The Information Commissioner[2006] IESC 2, available at www.oic.ie, 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 Minister for Public Expenditure and Reform has published guidance in relation to access to records by parents under section 37(8) of the FOI Act (i.e. Central Policy Unit Notice 25, available on www.foi.gov.ie). Section 48(3) of the FOI Act provides that FOI bodies "shall have regard to" such guidance when performing their functions under the FOI Act. In particular, section 2.1(B) of the Minister's guidance lists the following as factors to be considered:

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

The guidance also suggests that, where appropriate, there should be a consultation with the minor concerned to establish his or her views on the release of his or her personal information to a parent. In the particular circumstances of this case, I do not consider it appropriate for this Office to consult with the applicants' son. 

The HSE's view is that, having regard to all the circumstances, the grant of the request would not be in the best interests of the applicants' son. Its decisions say that he is a child in the care of TUSLA services and also that it does not have his consent for the record to be granted. I also note the distressing circumstances that prompted the applicants' request and I appreciate that, as set out in their internal review application, they want access to the report to help their son. I understand from their contacts with this Office that their son voluntarily chose to go into care. 

I have given careful consideration to the positions of the HSE and the applicants. I have also had particular regard to the particular sensitivity of the report's contents, the context in which it was created and the potential for upset to be caused to the applicants' son arising from its release. While undoubtedly upsetting for the applicants, in the particular circumstances of this case I do not consider that granting their request would be in their son's best interests. My finding is not to be taken in any way as reflecting on the applicants themselves. I find that the applicants are not entitled to the report further to the Regulations made under section 37(8) of the FOI Act. 

Section 37(2)

There are some circumstances, provided for at section 37(2) of the FOI Act in which the exemption at section 37(1) does not apply. 
Section 37(2)(a) provides that the exemption does not apply if the information concerned relates to the requester. The report does relate to the applicants. However, section 37(7) provides that, notwithstanding section 37(2)(a), a request shall be refused where access to a record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to individual(s) other than the requester ("joint personal information"). Section 37(2)(b) provides that the exemption does not apply if any individual to whom the information relates consents to its disclosure to the requester. However, as already noted the HSE's decisions say that it does not have their son's consent for the report to be granted to them. I find that no right of access arises under sections 37(2)(a) and (b) and I have no reason to consider sections 37(2)(c) to (e) to be relevant. 

Section 37(5)

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. 

On the matter of where the public interest lies, I have had regard to the comments of the Supreme Court in the Rotunda case [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, a link to which is available on www.oic.ie]. 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. 

Furthermore, McDermott J., in his December 2016 judgment in the case of F.P. and the Information Commissioner[2014 No. 114 MCA] ("the F.P. case"),  said that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that "the ‘public interest’ in granting access is not to be determined on the basis of the appellant’s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.” Thus, I cannot take into account any private interests that the applicants may have in the grant of access to the withheld information, including their wish to help their son. 

Neither can I take into account any dissatisfaction the applicants may have with how the HSE or its staff performed functions relating to their son or themselves. I have no role in determining such matters. It would not be appropriate for me to direct the release of their son's personal information in the public interest, effectively to the world at large, on the basis of any assertions that might be made regarding the HSE's performance of its functions in this case or on the basis of any views about the performance of its staff. 

The FOI Act recognises a public interest in ensuring the openness, transparency, and accountability of public bodies in how they perform their functions. This is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. Thus, I accept that there is a significant public interest in ensuring the HSE's accountability regarding its assessment of the applicants' son and any steps it took accordingly. 

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). 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. Taking account of the sensitivity of the report's contents and the context in which it was created, I consider that granting the applicants' request would result in a significant invasion of their son's rights to privacy. 

Having given the matter careful consideration, I find that the weight of the public interest in granting the request does not outweigh the public interest that the rights to privacy of the applicants' son should be upheld. 

Finally, I do not consider that any right of access arises further to section 37(5)(b), again having regard to the report's contents, the context in which it was created and the potential for upset to be caused to the applicants' son arising from its release.


Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE's refusal to grant the applicants' request under section 37 of the FOI Act. 


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. 

 


Elizabeth Dolan
Senior Investigator