Case number: 180107
9 May 2018
The applicant submitted a request to the HSE on 28 September 2017 for all records relating to his care under the Occupational Health Department. On 6 November 2017 the HSE issued a decision granting the applicant access in full to 182 pages of records and partial access to nine pages with the redaction of certain information on the ground that it is personal information relating to third parties. The applicant sought an internal review of the HSE's decision following which one additional page was released in full. The applicant sought a review by this Office of the HSE's decision on 23 March 2018.
In carrying out my review, I have had regard to the correspondence between the HSE and the applicant as set out above. I have also had regard to the communications between this Office and the applicant, and between this Office and the HSE. I have also had regard to the content of the records at issue. In referring to the records at issue, I have adopted the numbering system used by the HSE in the schedule of records it prepared when processing the request.
This review is concerned solely with the question of whether the HSE was justified in its decision to redact certain information from records 10, 11, 49, 57, 97, 113, 115 and 124 under section 37(1) of the Act.
While I am required to give reasons for my decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. This means that the reasons I can give for my decision in this case are somewhat limited.
Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester. Furthermore, section 37(7) provides for the refusal of a request where 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, and where it is not feasible to separate the personal information relating to the requester from that relating to the other party. Such information is commonly referred to as joint personal information.
The FOI Act defines the term "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 definition also contains a list of 14 specific types of information that is personal information for the purposes of the Act. Certain information is excluded from the definition of personal information, including anything written or recorded in any form by a member of the staff of a public body in the course of and for the purpose of the performance of his or her functions.
I am satisfied that the information redacted from records 49 and 57 is personal information relating to two third parties and that section 37(1) applies. The information redacted from the remaining records relates both to the applicant and to a member of the staff of the HSE. The HSE has, in essence, argued that the information in question is joint personal information that is held by it on the understanding that it would be treated by it as confidential. I am satisfied that the information is personal information relating to the applicant. On the matter of whether it can also be described as personal information relating to the staff member, I have considered whether the information can be deemed to fall outside the definition of personal information by virtue of the exclusion outlined above. While I am constrained by the provisions of section 25(3) from explaining my finding on this point in detail, I am satisfied that it cannot. The information can more properly be described, in my view, as a personal comment whose release would disclose personal information relating to the third party. I find, therefore, that the information at issue is joint personal information relating to the applicant and the staff member and that section 37(7) applies.
There are some circumstances, provided for at section 37(2), in which section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. Furthermore, 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.
As no evidence has been presented to this Office to suggest that the release of the record at issue would be to the benefit of the third party concerned, I find that section 37(5)(b) does not apply. On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates.
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.
The FOI Act recognises a public interest in the promotion of openness and accountability in how public bodies perform their functions. However, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "the right to privacy"). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. 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.
While I accept that there is a public interest in the applicant accessing personal information relating to him, the release of the information in records 10, 11, 97, 113, 115 and 124 would also involve the disclosure of personal information relating to a third party. Therefore, the question I must consider is whether the public interest in support of release of the information outweighs, on balance, the public interest in protecting the privacy rights of that third party. Having regard to the nature of the information concerned, I am satisfied that it does not. I find, therefore, that section 37(5)(a) does not apply to the redactions at issue.
Accordingly, I find that the HSE was justified in its decision to grant only partial access to records 10, 11, 49, 57, 97, 113, 115 and 124 under section 37(1) of the Act.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the HSE in this case.
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.