Whether the HSE was justified in its decision to withhold certain information contained in a file of the applicant’s mental health records
7 June 2019
On 16 April 2018 the applicant submitted a request to the HSE for access to his mental health records and some related records held by two named hospitals. On 2 July 2018, the HSE issued a decision in which it stated that it had decided to part-grant the request. It released a number of pages of records from two files relevant to the applicant, withholding two pages in full and five pages in part from the first file and five pages in part from the second file under section 35(1)(a) of the FOI Act on the ground that the withheld information was given to the HSE in confidence.
On 30 July 2018, the applicant sought an internal review of the HSE’s decision in relation to the seven pages held on the first file to which access had been refused either in whole or in part. The HSE issued an internal review decision on 16 August 2018 in which it affirmed its original decision. The applicant sought a review by this Office of the HSE’s decision on 27 February 2019.
During the course of this review, Ms Swanwick of this Office wrote to the applicant and outlined her view that the information at issue was exempt from release under section 37 of the FOI Act on the ground that release of the information would involve the disclosure of personal information relating to third parties. The applicant subsequently provided a further submission to this Office and having regard to that submission I consider it appropriate to conclude this review by way of a formal, binding decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the HSE and the applicant as outlined above and to correspondence between this Office and both the HSE and the applicant on the matter. I have also had regard to the content of the records at issue.
Scope of Review
The scope of this review is concerned solely with whether the HSE was justified in refusing access to certain information contained in seven pages held on the applicant’s mental health file.
Before I consider the substantive issue arising in this case, I wish to make a number of preliminary comments.
Firstly, while I am required by section 22(10) of the FOI Act to give reasons for 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 description which I can give of the withheld information and of the reasons for my decision is somewhat limited.
Secondly, in submissions to this Office, the applicant raised various issues with regard to the care afforded him by the HSE. It is important to note that this Office has no role in examining the appropriateness, or otherwise, of the administrative actions of public bodies, nor is it the role of this Office to comment on how an FOI body performs its functions generally.
Thirdly, as noted above, this Office has determined that the exemption at section 37 is of relevance in this case. My jurisdiction under section 22 of the Act is to make a new decision in light of the facts and circumstances as they apply on the date of the review. Given the fact that the exemption relating to the protection of personal information is mandatory and that the release of the record at issue may affect the interests of third parties, it is appropriate, in my view, for me to consider the applicability of section 37, notwithstanding the fact that it was not relied upon by the HSE in refusing access to the information sought.
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).
Section 2 of 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.
Having reviewed the records at issue, I am satisfied that all of the withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals, i.e. joint personal information. During the course of the review the applicant sought a fuller description of the type of information withheld. However, as I have outlined above, section 25(3) of the Act requires that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. Having regard to that constraint, I do not consider it appropriate to give a fuller description of the information at issue or of the basis on which I consider that the release of the information would involve the disclosure of personal information relating to third parties. However, as I am satisfied that it would, I find that section 37(1) applies to the withheld information.
Section 37(2) sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Furthermore, section 37(5) of the FOI Act 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 information at issue would be to the benefit of the third parties whose personal information would be disclosed if the information at issue was released, 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.
In considering 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  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.
The FOI Act acknowledges that there is a public interest in promoting the openness and accountability of public bodies in the manner in which they 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 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 both promoting openness and accountability of the HSE and in the applicant accessing personal information relating to him, the release of the withheld information would also involve the disclosure of personal information relating to third parties. 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 the individuals to whom the information relates. Having regard to the nature of the information concerned, I am satisfied that it does not. In holding this view, I am particularly cognisant of the fact that release under FOI is, in effect, release to the world at large given that the Act places no constraints on the uses to which information released under FOI may be put. I find therefore, that section 37(5)(a) does not apply.
Consequently, I find that the HSE was justified in its decision to refuse access to the information withheld from the first file of the applicant’s psychiatric records under section 37 of the FOI Act. Given my findings regarding section 37, it is not necessary for me to consider the applicability of section 35 in this case.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to withhold certain information contained in the first file of the applicant’s psychiatric records, but on the ground that section 37(1) applies.
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.