Whether the HSE was justified in refusing to release any further records, either in whole or in part, held on files relating to the applicant's mother on the ground that it holds no further relevant records containing personal information relating solely to him
22 May 2019
On 21 August 2018 the applicant submitted a request to the HSE for all personal information relating to him. He noted that any such personal information is likely to be held on his mother's file as a client of the HSE. He specified in his request that he was not seeking personal data of his mother or any other individual. On 25 September 2018 the applicant sought an internal review of the deemed refusal of his request as the HSE failed to issue a decision within the required time-frame.
The HSE issued its internal review decision on 22 October 2018, in which it stated that it had decided to part-grant the request. It stated that it was not releasing a number of letters that were either received from the applicant or issued to him on the ground that he already had access to those records. It granted partial access to seven records with the redaction certain information under section 37 on the ground that the release of the redacted information would involve the disclosure of personal information relating to the applicant's mother. On 2 November 2018 the applicant sought a review by this Office of the HSE’s decision.
I have decided to conclude this review by issuing a binding decision on the matter. In conducting my review, I have had regard to the correspondence between the applicant and the HSE as outlined above and to the correspondence between this Office and both the HSE and the applicant on the matter. I have also had regard to the content of the withheld records.
Scope of the Review
In his application for review, the applicant expressed concern that the HSE had not considered all relevant records for release. It is worth noting again that the applicant stated in his FOI request that he was not seeking personal data of his mother or any other individual. The records considered by the HSE in this case are held on two files relating to the applicant's mother. It appears that the HSE examined the files in question and released those parts of the records it considered to contain information relating solely to the applicant.
Accordingly, this review is concerned solely with whether the HSE was justified in refusing to release any further records, either in whole or in part, on the ground that it holds no further relevant records containing personal information relating solely to him.
The applicant argued that the HSE should have included all records relevant to his request in the schedule it prepared in response to the request. It appears that he is of the view that the HSE should have scheduled all records in which his name is mentioned in the records held on his mother's files. However, this view does not account for the possibility that some references to the applicant comprise joint personal information relating to the applicant and his mother and that to release such information would also involve the release of personal information relating to his mother.
As the applicant expressly stated that he did not require any personal data of his mother, such records would not come within the scope of his request and I see no issue with the HSE not scheduling records that contain joint personal information. It does appear, however, that while the applicant indicted to Ms McCrory of this Office during the course of the review that he understood the concept of joint personal information, he may not fully appreciate the extent to which information relating to him might be considered joint personal information. I will deal with this issue more comprehensively below.
Analysis and Findings
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).
The 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 the body as confidential. The Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition, including, for example, (i) information relating to the educational, medical, psychiatric or psychological history of the individual and (xiv) the views or opinions of another person about the individual.
The applicant indicted in his FOI request that the records he expected to contain information relating to him would likely be held on his mother's file or relate to the HSE's dealings with his mother. As such, it could be argued that all of the relevant records contain personal information relating to his mother. However, the HSE instead examined all of the records held on his mother's files and released certain information that it considered to relate solely to the applicant. Such an approach is not without its difficulties. Indeed, having examined the information released it seems to me that the HSE erroneously released some information that was, in fact, joint personal information relating to the applicant and other parties, including his mother.
For example, the HSE released an extract from a record which indicates that the applicant "primarily sees his mother on Sunday visit on rota". While I accept that this is personal information relating to the applicant, it is also personal information relating to his mother. This is an example of joint personal information, where the personal information relating to the applicant is inextricably linked to personal information relating to his mother. I do accept, however, that other information released related solely to the applicant, although my comments below regarding section 18 are relevant.
I also note the applicant's contention that the redactions made were too extensive and that the HSE should be able to isolate his personal information from that of third parties. However, given the nature of the applicant's engagements with the HSE and the context in which those engagements took place, such an exercise would, in my view, generally result in little more than the release of the applicant's name.
Under section 18(1) of the Act, an FOI body must provide access to an otherwise exempt record with exempt information removed, provided it is practicable to do so. However, this Office has previously taken the view that being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records. Furthermore, under section 18(2), the body is not required to provide such a redacted copy if the copy provided would be misleading. In considering whether the release of a redacted record is misleading, it seems to me that regard must be had to the general nature and substance of the entire record. Having regard to the nature and substance of the records at issue in this case, I do not accept that the HSE was required, under section 18, to release details of all instances where the applicant was mentioned.
The question I am left to consider, therefore, is whether the HSE was justified in refusing to release any further records, either in whole or in part, that contain personal information relating solely to him. Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
I have examined the records that were considered by the HSE when processing the applicant's request. There were 81 pages in total, 79 of which comprise records held on a social work file relating to the applicant's mother while the remaining two pages are held on a public health nursing file relating to his mother. Having examined the records, I find that (a) Section 18 does not require the HSE to release sporadic references to the applicant, and (b) all references to the applicant can be regarded as joint personal information wherein disclosure of the relevant extracts would involve the disclosure of joint personal information relating to the applicant and one or more third parties, primarily his mother.
In the circumstances, I find that the HSE was justified, under section 15(1)(a), in refusing to release any further records, either in whole or in part, on the ground that it holds no further relevant records coming within the scope of the applicant's request for personal information relating solely to him.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE in this case to refuse to release any additional records, either in whole or in part, on the ground that no further relevant records exist.
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.