Whether the NAS was justified in its decision to refuse a request under section 37 of the FOI Act, for access to records relating to calls to the emergency services
29 May 2019
On 27 November 2018, the applicant requested access to records held by the NAS relating to an incident when an ambulance was called and the applicant was taken to hospital. The applicant requested a copy of the recording of particular telephone calls, made to the emergency services and a copy of all notes made by ambulance personnel relating to the incident. On 6 February 2019, the NAS granted access in full to records relating to ambulance personnel notes and refused access to records of two emergency phonecalls under section 37(1) (Personal information) of the FOI Act. The NAS affirmed its original decision following an internal review request from the applicant. On 25 March 2019, this Office received an application for review of the decision of the NAS from the applicant.
I consider that this review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to submissions received from the NAS and to correspondence between the applicant, the NAS and this Office. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. The applicant was invited to make a submission but none was received.
Scope of Review
This review is concerned solely with whether the NAS was justified in deciding to refuse access to the withheld records on the basis of section 37(1) of the FOI Act.
It should be noted that, while I am required by section 22(10) of the FOI Act to give reasons for my decision, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. This constraint means that the detail that I can give about the content of the records and the extent to which I can describe certain matters in my analysis is limited.
I also draw attention to the extent to which it is feasible to provide access to parts of records while refusing access to the remaining parts. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 18 of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.
The release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.
Analysis and Findings
Although he did not mention it in his FOI request, the applicant referred in his application for review to this Office to "a printout of recordings". I have not found it necessary to establish whether any such "printout" is held since the findings I make would apply whether or not a transcript of the recordings was made. I have listened to the recordings which comprise the records.
Section 37- Personal Information
Section 37(1) of the FOI Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. 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 their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including "(xii) the name of the individual where it appears with other personal information relating to the individual or where disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual".
Section 37(7) provides that a request shall be refused where access to a record would, in addition to involving disclosure of personal information relating to the requester, also involve the disclosure of personal information of other individuals (joint personal information).
While I cannot discuss their content in any detail, I can state that the records are audio recordings of two calls made to the NAS emergency service concerning an incident involving the applicant. One call lasts for approximately one minute; the other call lasts for approximately 28 minutes.
Having listened to both calls I am satisfied that 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. Accordingly, I find the records to be exempt under section 37(1) of the FOI Act.
There are some further circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. Section 37(7) is also subject to sections 37(2)(b) to (e). I am satisfied that none of these are relevant in this case.
In relation to section 37(2)(b), I have not been given any indication that the individuals whose personal information is in the recordings have consented to disclosure. I do not consider that it would be appropriate for this Office to contact those third parties in this regard.
Section 37(5) (the Public Interest)
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.
It has not been argued that releasing the records would benefit the individuals to whom the information relates and I am satisfied that section 37(5)(b) does not apply in the circumstances. In relation to paragraph (a), the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.
The NAS stated that information is required in emergency situations in order to provide pertinent, life-saving advice and appropriate responses by the emergency services. It said that it must protect an individual's privacy in being able to speak freely, particularly in an emergency situation, in providing opinion and assessment of situations which have suddenly presented. It said that taking this into account it believed the public interest in granting the request is outweighed, on balance, by the public interest in protecting the right of privacy of the individuals to whom the information relates.
In considering the public interest test in section 37(5)(a), I must have regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner (the Rotunda judgment)
, available at www.oic.ie
. In its judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, “a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law” must be distinguished from a private interest for the purpose of section 37(5)(a).
The FOI Act itself reflects a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business. Thus, in this case, I find that there is a general public interest in openness and accountability as to the manner in which the NAS carried out its functions.
On the other hand, the FOI Act recognises a very strong public interest in protecting privacy rights in the language of section 37. It is also worth noting that the right to privacy also 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.
The question I must consider is whether the public interest in the release of the third party personal information contained in the records outweighs, on balance, the significant public interest in protecting the privacy rights of the third parties to whom the information relates.
I cannot identify a public interest which would override the Constitutional rights to privacy of the third parties to whom the records relate. As regards section 37(5)(a), I find that, in the circumstances of this case and having regard to the judgment of the Supreme Court in the Rotunda case, the right to privacy of the individuals whose personal information is in the records outweighs the public interest in granting the applicant's request.
Accordingly, I find that section 37(1) of the Act applies to the records.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the NAS to refuse access to the records under section 37 of the FOI Act.
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.