Case number: OIC-56469-Q9K5B1
31 January 2020
On 12 March 2019, the applicant submitted a request to the HSE for access to a copy of his mental health records since 2017 and related documentation. On 6 June 2019, the HSE issued a decision in which it stated that it had decided to part-grant the request. While it released the vast majority of the information held on two files relating to the applicant, it withheld certain information on the ground that it comprised personal information relating to third parties.
On 17 June 2019, the applicant sought an internal review of the decision to withhold third party personal information on the ground that the persons in question were known to him. On 20 August 2019, the HSE issued its internal review decision, wherein it varied its original decision and granted access to additional information contained in 23 pages. On 5 September 2019, the applicant sought a review by this Office of the HSE’s decision to withhold certain information from the records.
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 contents of the records at issue. In referring to the records at issue, I have adopted the page numbering system used by the HSE when processing the applicant’s request.
In this case, the HSE released the majority of pages held on two files of the applicant’s mental health records, withholding four pages in full and 26 in part from a file labelled 2018 and four pages in full and 32 pages in part from a file labelled 2019.
Accordingly, this review is solely concerned with whether the HSE was justified in refusing access, either in full or in part, to the following pages of records under section 37 of the FOI Act:
I note that pages 85, 97, 104, 116, 122, 141, 142, 143, 144, 145, 147, 151, 176, 192, 296, 299, and 303 of the 2019 file are respective duplicates of pages 8, 20, 27, 37, 43, 62, 63, 64, 65, 66, 68, 72, 97, 136, 180, 183, and 187 of the 2018 file. Furthermore, page 199 on the 2018 file is a duplicate of page 123 from the same file.
It is important to note that, 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 to 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.
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.
Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers). In addition, where the individual is or was a service provider, the definition does not include his or her name or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service (Paragraph II refers).
Having reviewed the records at issue, I am satisfied that with three exceptions, 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. Accordingly, I find that section 37(1) applies to such information.
The three exceptions, contained in the 2019 file, are as follows:
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 respect of the remainder of the information at issue. 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 withheld information would be to the benefit of the third parties 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.
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.
It seems to me that the public interest in promoting the openness and accountability of the HSE has been served to a large extent by the release of the majority of the records to the applicant. The question I must consider, therefore, is whether the public interest in further enhancing that transparency and accountability outweighs, on balance, the significant public interest protecting the privacy rights of the third parties concerned. Having regard to the nature of the information at issue, 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 records at issue under section 37 of the FOI Act, apart from the following information contained in the 2019 File:
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the HSE in this case. I find that the HSE was justified in refusing access, either in full or in part, to the records at issue under section 37(1) of the FOI Act, apart from the information identified above. I direct release of that information.
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.