Case number: OIC-57574-K4Y7D2
9 January 2020
The applicant in this case has had legal representation from the date she first submitted her FOI request to the HSE. Accordingly, all references to engagements with the applicant in this decision should be taken to include engagements with her legal representatives.
According to the applicant, her husband tragically died in March 2019 following an incident at a named hospital that involved An Garda Síochána (AGS). On 5 April 2019, the applicant submitted a request to the HSE for access to the deceased’s medical records and CCTV footage of him at the hospital. In its decision of 18 April 2019, the HSE part-granted the request. It released the deceased’s medical records but refused access to the CCTV footage under sections 32(1)(a)(i) and 37 of the FOI Act.
The applicant wrote to the HSE on 3 May 2019 and argued that certain categories of records were missing and that the HSE should have released the CCTV footage. On 7 June 2019 the HSE issued correspondence in which it released the deceased’s laboratory reports. It also clarified certain other matters relating to the record keeping practices of its health professional staff.
On 2 July 2019, the applicant sought an internal review of the HSE’s refusal of the CCTV footage. On 24 July 2019 the HSE affirmed its original decision, refusing access to the CCTV footage under section 32(1)(a)(i) on the basis that release of the record would jeopardise a GSOC investigation into the involvement of AGS in the incident. On 2 October 2019, the applicant sought a review by this Office of that decision. During the course of this review, the HSE argued that the CCTV footage was exempt under sections 32(1)(a)(i) and 37.
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 applicant and the HSE as set out above. I have also had regard to the correspondence between this Office and both the applicant and the HSE on the matter. I have also examined and had regard to the contents of the CCTV footage at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the HSE was justified in refusing to grant access to the CCTV footage sought under sections 32 and/or 37.
Before setting out my analysis and findings on this review, I would like to offer my condolences to the applicant on the death of her husband.
I note that the applicant has indicated she requires the CCTV footage in order to interpret other records. It is important to note that 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 records at issue, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the records where the Act requires a consideration of the public interest.
The record at issue in this case consists of approximately four hours of footage taken from a number of individual cameras located around the hospital. The deceased is depicted in and around the hospital and its grounds, and appears in much, though not all, of the footage. The footage depicts numerous members of the public, including patients and visitors to the hospital, moving in and out of frame of the CCTV cameras. A significant number of HSE staff also appear in the footage, as do two members of AGS. The HSE stated that the applicant herself also appears in the footage.
From my examination of the record, it would appear to contain the following types of information:
The HSE relied on sections 32 and 37 to refuse access to the CCTV footage. As I consider section 37 to be of most relevance in this case, I will consider that exemption in the first instance.
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).
I am satisfied that the release of CCTV footage taken at a hospital that captures a member of the public would involve the disclosure of personal information relating to that member of the public. As such, as will be apparent from my description of the contents of the CCTV footage at issue in this case, I am satisfied that the release of the entirety of the record at issue would involve both the disclosure of personal information relating to individuals other than the deceased or the applicant and the disclosure of joint personal information relating to the deceased and other individuals. I find, therefore, that section 37(1) applies to the record.
I should say at this stage that Section 37(8) provides that, notwithstanding section 37(1), the Minister for Public Expenditure and Reform may provide by regulations for the grant of a request where “the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations”. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 as amended (the Regulations).
Among other things, the Regulations provide for the release of personal information relating to a deceased individual in certain circumstances. One such circumstance is where the requester is the spouse or next of kin of the individual and the public body considers, having regard to all the circumstances, that the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request.
However, section 37(8) does not provide for the release of a record containing personal information relating to a deceased individual that would also involve the disclosure of personal information relating to individuals other than the deceased or the applicant, as is the case here.
Section 37(2) and 37(5)
Section 37(2) sets out certain circumstances in which sections 37(1) and 37(7) do not apply. I am satisfied that none of those circumstances arise 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 information would be to the benefit of the person to whom the information relates.
No evidence has been provided to this Office that the release of the information at issue would be to the benefit of the individuals concerned. I find therefore that section 37(5)(b) does not apply. In relation to paragraph (a), I must consider 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 FOI Act itself recognises the public interest in ensuring the transparency and accountability of public bodies. Indeed, under section 11(3), an FOI body, in performing any function under the Act, must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs, and the need to strengthen the accountability and improve the quality of decision making of FOI bodies.
On the other hand, however, 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. Accordingly, when considering section 37(5)(a), privacy rights will 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 further enhancing the transparency and accountability of the HSE is sufficient to outweigh, on balance, the privacy rights of the third parties concerned. In my view it is not, given the inherently private nature of the information that would be disclosed relating to individuals other than the applicant. It is also important to note that the release of a record on foot of a request made 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 released may be put. I therefore find that section 37(5)(a) does not apply.
Section 17(4) and section 18(1)
For the sake of completeness and given the nature of the record, I wish to address the question of whether the HSE should have considered releasing a redacted copy of the record with the redaction of footage containing personal information relating to individuals other than the deceased and/or the applicant.
Section 2 of the Act defines “record” as including “a copy or part” of anything falling within the definition of a record. Section 18(1) 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 head of the FOI body concerned considers appropriate, of the record with the exempt information removed. However, section 18(1) does not apply in relation to a record if the copy provided for thereby would be misleading.
It seems to me that the release of a redacted copy of the CCTV footage in this case would serve no useful purpose and would, in fact, be misleading as a representation of footage of the deceased’s time at the hospital.
I have also considered whether the HSE should have released a pixilated version of the record at issue in order to protect the identities of third parties. It is noteworthy that section 17(4) of the Act, which is concerned with the release of electronically held information contained in a number of records, requires a body to take reasonable steps to extract that information, but only in so far as those steps involve the use of any facility for search or extraction that existed on the date of the request and was ordinarily used by the body. In other words, the body is not required to extract the data if a facility that it does not ordinarily use is needed in order to do so.
In its submission to this Office, the HSE stated that it does not have the necessary facilities required to pixilate the CCTV footage. It seems to me that this, of itself, is sufficient to find that section 17(4) does not apply in this case. I note, nevertheless, that the HSE sought a costs estimate from a forensic video analytics company in respect of the cost involved in pixelating the CCTV footage. While it was unable to obtain a definitive estimate, it stated that the total cost is expected to be at least in the region of thousands of euro given the number of cameras involved and the number of individuals captured in the footage. The HSE submitted that it was impractical and would require disproportionate expenditure of financial resources to pixelate the record.
In all of the circumstances, I am satisfied that the HSE is not required to provide a redacted or pixilated version of the record sought in this case.
In conclusion, therefore, I find that the HSE was justified in refusing the applicant’s request for a copy of the footage of her late husband at the hospital under section 37(1) of the Act. Having found section 37(1) to apply, it is not necessary for me to consider the applicability of section 32(1)(a)(i) to the record.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the HSE's decision to refuse the applicant’s request for a copy of the footage of her late husband at the hospital under section 37(1) of the 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.