Case number: 180075
12 June 2018
On 10 July 2017, the applicant submitted a request to the HSE for all of her medical records held by a clinic in the North Dublin Mental Health Services.
On 25 July 2017, the HSE released 142 pages of records, with the redaction of information from 8 pages on the ground that the release of the redacted information would involve the disclosure of personal information relating to third parties.
On 17 August 2017, the applicant sought an internal review of that decision. She suggested that there were additional records not received. On 6 October 2017, the HSE issued a late internal review decision, in which it affirmed its original decision and refused the request for further records under section 15(1)(a) as it could not locate any further records. On 23 February 2018, the applicant sought a review by this Office of the HSE’s decision.
During the course of the review, the HSE identified two further records relevant to the request and provided those to the applicant. The HSE also provided this Office with the details of the searches carried out to locate all relevant records. Ms Swanwick of this Office outlined the details of those searches to the applicant and informed the applicant of her view that the HSE was justified in deciding that no further relevant records exist or could be found. The applicant subsequently provided further submissions to this Office and having regard to those submissions 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 have had regard to the contents of the records at issue. In referring to the records, I have adopted the page numbering system used by the HSE in relation to the batch of records that were released to the applicant in July 2017.
This review is concerned with whether the HSE was justified in redacting certain information from pages 8,21,59,79,95,123,129, and 135 under section 37(1) of the FOI Act and in refusing access to any further relevant records under section 15(1)(a) on the ground that no further relevant records exist or can be found.
Section 15(1)(a) – “Search” Issues
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.
The HSE, in its submission to this Office on 12 April 2018, provided details of the searches conducted in response to the applicant’s request. As this Office has already provided the applicant with those details, I do not propose to repeat them in full here. In short, the HSE stated that the physical, manual, and electronic searches that were carried out considered all derivatives of the applicant’s name. The HSE also identified the various locations that were searched.
The HSE stated that, although it is not practice for individual staff members to hold personal records, the individuals relevant to the applicant’s request were consulted. It stated that the relevant individuals had confirmed with the relevant senior manager that they had no further notes in relation to the applicant and that they did not hold their own records on service users. The HSE also stated that where the relevant individuals were no longer employed by the HSE, the local clinics where they had been based were searched. The HSE outlined that interviews were held with individual staff members who were directly involved in the applicant’s care, including staff members who replaced those who were no longer employed by the HSE.
The HSE noted that the medical chart is made up of manual and electronic records known as Mental Health Information System (MHIS) records. The HSE stated that following the discovery of the additional records on the MHIS system that had not been downloaded and placed on file, the system was rechecked. It stated that this search included derivatives of the applicant’s name and allowed for spelling mistakes.
In her submissions to this Office, the applicant argued that there was information missing from the medical records she received. In essence, she is seeking detailed medical information from the relevant health professionals with whom she engaged relating to her illness.
The HSE's position is that no such records exist, apart from the records already released. The FOI Act access provides for a right of access to records that currently exist. If the record sought does not exist, that is the end of the matter. There is no requirement for a public body to create records in response to FOI requests. While the applicant may be unhappy with the HSE’s response, this review is confined to considering what relevant records actually exist as opposed to what records the applicant considers should exist.
Having considered the details of the searches undertaken, I am satisfied that the HSE has carried out all reasonable steps in an effort to ascertain the whereabouts of all relevant records coming within the scope of the request. I find, therefore, that the HSE was justified in refusing access to any additional records on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Section 37 – Personal Information
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), subject to the other provisions of section 37, provides for the mandatory refusal of a request where access to the records concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester. Furthermore, section 37(7) provides that an FOI body shall refuse to grant a request if access to the record concerned would, in addition to disclosing personal information relating to the requester, disclose personal information relating to individuals other than the requester, commonly known as joint personal information. As such, where section 37(7) is found to apply, joint personal information is exempt under section 37(1).
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. Without prejudice to the generality of the foregoing definition, section 2 also lists 14 non-exhaustive examples of what must be considered to be personal information.
Having reviewed the records and redactions 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. Accordingly, I find that section 37(1) applies to those redactions.
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 record at issue would be to the benefit of the third party 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.
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 her, the release of the redacted information would 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. I find therefore, that section 37(5)(a) does not apply to the redactions at issue.
Consequently, I find that the HSE was justified in its decision to refuse access to certain information on pages 8,21,59,79,95,123,129, and 135 under section 37(1) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse access to further records coming within the scope of the applicant’s request under section 15(1)(a) of the FOI Act and to refuse access to certain information on pages 8,21,59,79,95,123,129, and 135 under section 37(1) of the FOI 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.