Case number: OIC-97866-J9L3Q7
1 December 2020
The applicant has been represented by his solicitors in all matters relating to this review. Accordingly, all reference to engagements with the applicant should be taken to include all engagements with his legal representatives. The applicant was a member of an ambulance crew that attended a call-out in September 2017, following an emergency call to the National Emergency Operations Centre (NEOC). It appears he was injured during the call-out and he is currently pursuing a personal injuries claim against the HSE and National Ambulance Service.
In a request dated 26 May 2020, the applicant sought access to a copy of the recording of the call that was made to the NEOC. On 31 July 2020, the NAS refused access to the record under section 37(1) of the FOI Act on the ground that its disclosure would involve the disclosure of third party personal information. On 5 August 2020, the applicant sought an internal review of that decision, following which the NAS affirmed its original decision. On 2 October 2020, the applicant sought a review by this Office of that 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 correspondence between the NAS and the applicant, and to the communications between this Office and both the applicant and the NAS on the matter. The NAS provided this Office with a copy of a transcript of the call and I confirm that I have also had regard to the contents of that record. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the NAS was justified, under section 37(1) of the Act, in refusing access to a recording of the emergency call on the ground that release of the record would disclose personal information relating to individuals other than the applicant.
Before I address the substantive issues arising, I would like to make a number of preliminary comments First, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office 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. I will address the public interest balancing test contained in section 37 later in this decision.
Secondly, it is important to note that the release of a record under the FOI Act is, in effect, regarded, as release to the world at large, given that the Act places no constraints on the potential uses to which released records may be put. As such, the fact that the applicant may be aware of the identity of the individuals about whom the information in the record relates does not mean that the information cannot be withheld under section 37.
Section 37(1) of the FOI Act provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to individuals other than the applicant.
For the purposes of the Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by it as confidential. The Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including (i) information relating to the medical history of the individual.
Having examined the transcript of the telephone call, I am satisfied that it comprises personal information relating to individuals other than the applicant. I am satisfied that the release of the audio recording would involve the disclosure of personal information relating to individuals other than the applicant.
I note that the applicant suggested, in a letter of 29 October 2020 to this Office, that the record could be released with certain information redacted. Section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I take the view that neither the definition of a record under section 2 of the Act 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, I am 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. In any event, having regard to the contents of the record at issue, I am satisfied that a redacted version of the record would be misleading, having regard to the level of redaction that would be required to ensure that no third party personal information was disclosed.
In the circumstances, I find that section 37(1) applies to the entire record. However, that is not the end of the matter as section 37(1) is subject to the provisions of subsections (2) and (5). Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) applies to the record in this case. 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 request would benefit the person to whom the information relates. I am satisfied that subsection (b) does not apply in the circumstances of this case.
On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, 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.
Furthermore, McDermott J., in his December 2016 judgment in the case of F.P. v The Information Commissioner [2014 No. 114 MCA] (“the F.P. case”), which was subsequently upheld by the Court of Appeal, 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.”
On the matter of 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 had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors. 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. Furthermore, as noted above, it is relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large.
In essence, the applicant has indicated that he requires access to the record in order to pursue his personal injuries claim. In my view, this is essentially a private interest. It is clear from the above judgments that I cannot, in making this decision on the right of access under FOI, take into account the applicant’s private interests in the grant of access to the records withheld. Nevertheless, I accept that there is a public interest in a staff member of a public body being able to access information that might serve to allow the staff member to draw conclusions as to whether the body had appropriate regard to his or her health and safety at work. However, I am cognisant of the fact that the information at issues comprises inherently private and sensitive personal information. In the circumstances, I find, on balance, that the public interest in granting the request does not outweigh the right to privacy of the individuals to whom the information relates.
I find, therefore, that the NAS was justified in refusing access to the withheld information under section 37(1).
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the NAS’s decision to refuse access to the audio recording of a specific call to Emergency Services on the basis that the recording is exempt from release under section 37 of the FOI Act.
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.