Issue: Whether the HSE was justified in refusing access to records on the applicant's file, on the grounds that the records are exempt under sections 31(1)(a) and 32(1)(b) and (c) of the FOI Act
Review: Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
On 28 January 2017, the applicant made an FOI request to the HSE for "all of my records, medical and otherwise, held by the HSE [and certain named hospitals]". The HSE did not issue a decision. On 6 May 2017 the applicant applied for an internal review of the deemed refusal. The HSE issued an internal review decision on 14 June 2017, in which it refused access to the records under section 32(1)(a)(iii) of the FOI Act. On 16 June 2017 the applicant sought a review by this Office of the HSE's decision.
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 parties, as well as the contents of the withheld records that were provided to this Office by the HSE for the purposes of this review.
Scope of the Review
During the review process, the HSE clarified that it had cited an incorrect exemption in referring to section 32(1)(a)(iii). It relies on section 32(1)(b) and (c) in relation to the majority of records and on section 31(1)(a) in respect of certain records. Accordingly, this review is concerned with whether the HSE was justified in refusing access to the records under sections 31(1)(a) and 32(1)(b) and (c).
Before considering the exemptions claimed, I wish to make the following points. First, section 22(12)(b) of the FOI Act provides that when I review a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, the onus is on the HSE in this case to satisfy me that its decision to refuse access to the records at issue was justified.
Secondly, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach.
Analysis and Findings
Section 31(1)(a) - Legal professional privilege
The HSE claims section 31(1)(a) over the following records: pages 208, 212, 217, 264-268. Although these records pre-date the commencement of the FOI Act, they relate to personal information about the applicant. Section 11(5)(b) provides that subject to the FOI Act, there is a right of access in respect of such records. I will therefore proceed to consider section 31(1)(a).
Section 31(1)(a) of the FOI Act provides that an FOI body shall refuse to grant a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). In deciding whether section 31(1)(a) applies, I must therefore consider whether the record concerned would be withheld on the ground of LPP in court proceedings. LPP enables the client to maintain the confidentiality of two types of communication:
confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and
confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
I am satisfied that section 31(1)(a) applies to the above-numbered records, on the basis that they are confidential communications between a client and their legal adviser for the purpose of seeking and obtaining legal advice. I therefore find that the HSE is justified in withholding access to these records under section 31(1)(a) of the FOI Act. There is no public interest override provided for in this particular exemption.
Section 32(1) - Law enforcement and public safety
The HSE claims sections 32(1)(b) and (c) over the remaining records.
Section 32(1)(b) provides that an FOI body may refuse to grant an FOI request if access to the record concerned could, in its opinion, reasonably be expected to endanger the life or safety of any person. This exemption is not commonly used. The Commissioner takes the view that section 32(1)(b) should not be applied without careful consideration having been given as to whether the expectation is a reasonable one in all the circumstances. It is not necessary, or indeed possible, to establish that such harm will occur, but the FOI body should show that there is a reasonable expectation of this.
The HSE says that the danger to the life or safety of persons is a major concern to it and that the precaution taken by not releasing the records to the applicant is to prevent the endangerment of the life or safety of persons who are named in the records. It submits that based on the applicant's previous behaviour and actions, it could reasonably be expected that releasing the records could have serious repercussions for staff of the service and its property. It says that it has a responsibility to ensure the safety of security of its staff and property. It says that it is uncertain how the applicant would react, as his previous behaviour indicates that it may be harmful to staff members (some of whom are retired and living in the community) and members of the public.
The HSE has provided a detailed background to the applicant's interactions with its services. While I do not consider it appropriate to repeat the details here, I have taken all of it into account. The applicant was a patient of the HSE and maintained contact with the service up until approximately 20 years ago. During the review, the HSE confirmed that the applicant has not received services from it for the past 20 years and the only contact which it has had with the applicant is through receiving FOI requests from him.
The question for me is whether, at this point in time, the HSE's expectation of harm is reasonable in the circumstances. I have given the HSE's submissions careful consideration. On the one hand, I note the gravity of the past behaviour described by the HSE. On the other hand, the HSE has not provided contemporaneous or indeed recent evidence on which to ground its current expectation of harm. I do not believe that I have a basis on which to accept that releasing the records could reasonably be expected to endanger the life or safety of people at this point in time. I find that the HSE is not justified in refusing access to the records under section 32(1)(b) of the FOI Act.
Section 32(1)(c) provides that an FOI body may refuse to grant an FOI request if access to the record concerned could, in its opinion, reasonably be expected to facilitate the commission of an offence. If an FOI body is relying on section 32(1)(c), it should show how releasing the record could make the commission of an offence easier and consider the reasonableness of hat occurring. It should show the link between the particular record and how its release could make the commission of the offence(s) easier. I note that the Oxford English Dictionary states that the word "facilitate" means "to make easier" or "to render easier". The question is not whether such an offence will occur, but whether releasing the information could make it easier to commit an offence.
The HSE submits that releasing the records could reasonably be expected to facilitate the commission of an offence, in this case the possible assault on staff or retired staff. It says that because of the very serious nature of the applicant's behaviour in the past, it is reasonable to have an expectation that similar situations might re-occur. I believe that the harm which the HSE is referring to here is the same harm which I have addressed above under section 32(1)(b). I do not accept that releasing the records could reasonably be expected to "make it easier" for the applicant to commit an offence and the HSE has not shown me how this is the case. I find that the HSE is not justified in refusing access to the records under section 32(1)(c) of the FOI Act.
Section 37 - Personal information
Although the HSE did not claim section 37 of the FOI Act in this case, I believe that it is the more appropriate exemption to apply in the particular circumstances of this case. The records predominantly relate to the applicant. However, certain records contain information which relates to the applicant's deceased spouse: File 2 - pages 8, 9, 11, 13, 15 and 19; the fourth paragraph on page 181; and the first four sentences of the fourth paragraph on page 185 (duplicated at pages 199 and 239). I will consider these records under section 37(8). The remaining records, which comprise the majority of the file, relate to the applicant. I will consider these under sections 37(3) and (4).
Section 37(8) provides that the Minister may provide by regulations for the grant of an FOI request, where the individual to whom the record concerned is deceased. The HSE does not appear to have considered section 37(8) or the relevant regulations (Freedom of Information Act 2014 (Section 37(8)) Regulations 2016, S.I. No. 218 of 2016) in respect of the above-numbered records. Although the applicant and the individual concerned were divorced, I note that for the purposes of the 2016 Regulations, the term "spouse" includes "a party to a marriage that has been dissolved, being a dissolution that is recognised in the State". To the extent that the applicant seeks access to these records, he would appear to be doing so as the spouse of the deceased individual, so that the request falls to be dealt with under article 7(b) of the 2016 Regulations. However, it is for the HSE to establish this and to apply the relevant legislation and guidelines, including the public interest in the confidentiality of personal information. I am satisfied that in the circumstances of this case, the HSE should have considered the 2016 Regulations insofar as the above-numbered records are concerned.
In the circumstances, I consider that the appropriate course of action is to annul the HSE's decision on the above-numbered records and direct it to undertake a fresh decision-making process on them, having due regard to the provisions of the 2016 Regulations.
Sections 37(3) & (4)
I will now consider the remaining records under sections 37(3) and (4). In its submissions to this Office, the HSE says that it is also of concern that releasing the records may be detrimental to the applicant's mental health and well-being. In that regard, it points to statements by consultants relating to one of the last recorded contacts between the applicant and the HSE about the possible effect of the applicant reading the content of the records.
Therefore, during the review, the Investigator invited the HSE's submissions on the applicability of sections 37(3) and (4). In reply, the HSE submits that these provisions do not apply in the circumstances, based on the records and the applicant's previous actions and the nature of his relationship with staff members. It refers to its duty of care to staff and the public and its real and genuine concern that he may not behave in a reasonable manner if he was to receive access to the records in any form, even in the presence of a professional. For completeness, I should note that the Investigator also notified the applicant that this Office was considering sections 37(3) and (4) and invited any queries or comments. The applicant did not make any points in reply to this.
Section 37(3) provides that an FOI body may refuse an FOI request for records of a medical or psychiatric nature relating to the requester concerned if it considers that disclosure of the information to the requester concerned might be prejudicial to his or her physical or mental health, well-being or emotional condition. However, if it chooses to do so, it must, under section 37(4), offer access to such health professional having expertise in relation to the subject matter of the records as the requester may specify.
It seems to me that the intention of section 37(4) is to allow an appropriate health professional with relevant expertise to make a more informed decision as to whether such sensitive records might be made available to requesters in such a manner that seeks to avoid the harms identified in section 37(3). I also note that the threshold for meeting the exemption is quite low; i.e. disclosure might be prejudicial to a requester's well-being or emotional condition.
I have given careful consideration to the circumstances of this case, along with the nature of the records and submissions made. In view of the applicant's history and the content of the records, I am satisfied that granting him direct access to the records might be prejudicial to his well-being. Accordingly, I find that the applicant does not have a right of unmediated access to the records, by virtue of section 37(3). However, under section 37(4), it is open to the applicant to contact the HSE if he wishes to exercise his right to nominate a relevant health professional to whom his records may be made available.
I believe that this finding strikes an appropriate balance in the difficult and particular circumstances of this case.
Having carried out a review under section 22(2) of the FOI Act, I vary the HSE's decision as follows. I affirm its decision on the records over which it claims legal privilege under section 31(1)(a). I find that the HSE was not justified in its decision to refuse access to the remaining records under section 32(1)(b) and (c). I direct it to undertake a fresh decision-making process on the records relating to the applicant's deceased spouse (numbered above), having due regard to the provisions of the Freedom of Information Act 2014 (Section 37(8)) Regulations, 2016 S.I. No. 218 of 2016. I find that section 37(3) applies to the remaining records and I draw the parties' attention to the requirements of section 37(4).
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.