Whether the HSE was justified in refusing access to records relating to the applicant in full or in part on the basis of sections 15(1)(a), 30, 31 and 37 of the FOI Act
14 August 2019
In a request received on 1 June 2018, the applicant sought access to all information held about her by a named service in the HSE for a particular time period. She sought access to all records which were written and/or signed by her, as well as those which referred to her.
On 28 November 2018, the applicant requested an internal review as she had not received a decision from the HSE on her request. On 4 January 2019, the applicant applied to this Office on the basis of a deemed refusal, as an internal review decision had not been issued by the HSE.
Following correspondence from this Office, the HSE issued a late internal review decision or “effective position” on 29 January 2019, identifying 481 relevant pages. It granted access to 281 pages in full. It refused to grant access to the remaining records in full (116 pages) or in part (84 pages) on the basis of sections 30, 31 and 37 of the FOI Act. On 8 February 2019, the applicant applied to this Office for a review of that decision.
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 submissions made by the applicant and her application for review as well as to the submissions made by the FOI body in support of its decision. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
Scope of Review
Having examined the records concerned, I am satisfied that the first paragraph on page 1 (dated 12 June 2018) and page 148 in full are outside the timeline of the applicant’s request and consequently, they will not form part of this review.
Following its effective position letter of 29 January 2019, the HSE acknowledged that it had not conducted searches for records relating to 2014-2016 when dealing with the applicant’s request. It indicated that this would be done as a matter of urgency. To date, as far as I am aware, these records have not yet been collated or provided to the applicant. In her application for review, the applicant also raised issues as to whether all records within the scope of her request had been identified.
Accordingly, this review is solely concerned with whether the HSE was justified in refusing to grant access to records sought, in full or in part, on the basis of sections 30, 31 and 37 of the FOI Act, and whether it was justified in refusing to grant access to additional records on the basis of section 15(1)(a).
I would draw the HSE’s attention to its obligations under section 13 of the FOI Act to make timely decisions on FOI requests. I note that no original decision or internal review decision issued and the applicant had no reply to her request until after this Office intervened. I would expect the HSE to ensure that future decisions comply with their obligations under the Act.
Section 2 of the Act defines “record” as including “a copy or part” of any thing 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. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).
The Commissioner takes the view that neither the definition of a record under section 2 of the Act 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, he is not in favour of the cutting or "dissecting" of records to such an extent. He takes the view that, being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Analysis and Findings
The records located
The HSE identified 481 pages of records relating to the applicant’s request. It refused to grant access to 116 pages in full, 84 in part and granted access to the remaining 281 pages. It relied on sections 30(1)(b), 31(1)(a) and 37 to do so. As the records mainly concern service users of the HSE, as well as other staff members of the facility concerned, I shall initially consider the records under section 37.
The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester. Where a request would otherwise be refused under section 37(1), it may still be granted where the public interest that it be granted outweighs the public interest that the right to privacy of the individual to whom the personal information relates should be upheld.
Section 37(7) provides that a request shall be refused where access to a record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to individual(s) other than the requester. This is often referred to as ‘joint personal information’.
Section 2 of the Act provides that where an individual holds or held a position as a member of staff of an FOI body, their name, information relating to the office, position or its function or anything written or recorded in any form by the individual in the course of or for the purposes of the provision of the service, do not fall within the definition of personal information in the Act. However, this exclusion to the definition of personal information does not deprive staff members of FOI bodies of the right to privacy generally. For example, the Commissioner takes the view that it does not exclude personnel records or records relating to the “competence or ability of the individual in his or her capacity as a member of staff of an FOI body”.
In this case, the applicant worked for the HSE in a named facility during the timeframe of the records sought. During this time, she corresponded with various managers and colleagues concerning service users at the facility. As set out above, any documents created by the applicant in the course of her work, or for the purposes of the provision of the services provided by the HSE, do not comprise her personal information. I am satisfied that references to service users in these records comprise their personal information and not that of the applicant. I am also satisfied that references to the applicant in relation to appraisals of her work or disciplinary matters do comprise her personal information as defined in the FOI Act. However, as set out above, where the personal information of an individual is intertwined with that of third parties to such an extent that it would be impossible to release one without the other, section 37(7) applies to this joint personal information.
The applicant’s personal information
The HSE refused to grant access in full or in part to the majority of the records withheld under section 37, on the basis that they contain the personal information of parties other than the requester. Having examined the records at issue, I am satisfied that a number of records identified by the HSE as relevant to the applicant’s request either do not refer to her at all or were generated in the course of carrying out the HSE’s functions and, accordingly, do not contain personal information relating to the applicant. I find that section 37(1) applies to these records and that the HSE was justified in refusing to grant access to the following records on the basis that they do not contain the personal information of the applicant, as defined in the FOI Act: pages 4-8, 29-30, 52-54, 82-84, 107-108, 122, 157-167, 246-247, 260-261, 267, 420-423, 425-426 and 430.
However, I am also satisfied that part of page 1 (emails dated 16 May 2018), and the information on pages 2-3 and 43 do relate to the applicant and comprise her personal information. Accordingly, I find that the HSE was not justified in refusing to grant access to this information on the basis of section 37 of the FOI Act.
Personal information relating to third parties
Having regard to the above, and having examined the records at issue carefully, I am satisfied that the following records contain the personal information of third parties other than the requester and/or the joint personal information of the requester and various third parties; and that section 37(1) applies to the information withheld from release:
Pages 31, 34-42, 44-45, 49, 63-67, 73, 75, 77-81, 85-86, 88-89, 92-94, 96-98, 100, 102-103, 106, 109, 120, 123-147, 171-173, 193, 200, 202, 211, 214, 216, 226-232, 241-242, 254-255, 259, 273-278, 280, 282-285, 321, 329-330, 333, 339, 351-352, 355, 358, 362, 370, 407 and 473.
I note that the applicant is of the view that the anonymity of third parties could be maintained simply by redacting information on their identity. Generally speaking, it is not as straightforward as it would appear to anonymise records of the kind sought in this case. The context and content of the records is such that, even if the names of the service users, their family members and other HSE staff were redacted, it would be relatively straightforward for anyone connected with the facility or the HSE to identity the persons involved. It is important to note that release of records under FOI is considered to be the equivalent of release to the world at large, and I must have regard to this in arriving at a decision in relation to a refusal to release records. Furthermore, as set out above, I must have regard to the provisions of section 18, and whether the redaction of such information would render the redacted document misleading. In the circumstances of this case, I am satisfied that it would not be practicable to release the records with further redactions.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of their information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
Consequently, I find that section 37(2) does not apply to the information in the records at issue.
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 section 37(5)(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.
In its submissions to this Office, the HSE stated that it had considered the balance between the public interest in openness, transparency and accountability and the right to access records under the FOI Act on one hand, and the public interest in protecting the right to privacy of third parties, and, in particular, that of the HSE’s service users on the other hand. It stated that on balance, the public interest factors against release outweighed those in favour of granting access to the records sought.
The applicant has not made any public interest arguments in favour of release. In essence she has stated that she is seeking the records at issue at least in part in order to ensure that the information held on her by the HSE on her personnel file is correct, and to amend it if it is not. However, as noted above, most of the records withheld are not from the applicant’s personnel file, and generally speaking, the information withheld relates to service users or other members of staff, as well joint personal information concerning the applicant. Furthermore, section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. Therefore, I can only take into account the purpose for which she seeks this information to the extent that it comprises a public interest. However, I believe that the interest which the applicant sets out is more properly viewed as a private rather than a public interest. Accordingly, this is not a question of whether to disclose certain information only for the purposes of the applicant challenging or examining the records held by the HSE relating to her; it is a question of whether to disclose certain information to the world at large.
The FOI Act itself recognises the public interest in ensuring the openness and accountability of public 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.
In relation to the issue of the public interest, it is important to have 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.
I recognise that there is a public interest in transparency and accountability around public bodies' activities. This is acknowledged in section 11(3) of the FOI Act, which I believe to be a "true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law". Insofar as there is a public interest in transparency and accountability around the HSE’s
functions and how it handles complaints and related issues by or against staff members, I consider that this has been met in the circumstances by the records released in full or in part relating to the applicant.
Having regard to the above, on balance, I do not believe that the public interest that the FOI request should be granted outweighs the public interest that the right to privacy of third parties should be upheld. I therefore find that section 37(5)(a) does not apply in the circumstances.
Accordingly, I find that the HSE was justified in withholding access to the records listed above, other than part of record 1 and records 2, 3 and 43, in full or in part, on the basis of section 37 of the FOI Act. I direct the release of part of record 1 and records 2, 3 and 43 to the applicant.
The HSE withheld access to pages 117-119 on the basis of section 30(1)(b). In submissions to this Office, it also relied on this exemption in support of its refusal to grant access to page 43.
Section 30(1)(b) provides for the refusal of a request if the FOI Body considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management, including industrial relations and management of its staff. When invoking section 30(1)(b), the FOI body must make an assessment of the degree of significance attaching to the adverse effects claimed. Having identified the significant adverse effect envisaged, the FOI body should then consider the reasonableness of its expectation that the harm will occur. In examining the merits of an FOI body's view that the harm could reasonably be expected, this Office does not have to be satisfied that such an outcome will definitely occur. It is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations.
Section 30(1)(b) is subject to a public interest test at section 30(2).
The HSE stated that pages 117-119 related to the management of the relevant HSE service and a review of the service provided at a specific facility. It said that page 43 contained guidance given by a senior manager to another member of staff concerning the same matters. It also said that the records at issue contained details of the steps taken and to be taken, as well as protective measures required, in the relevant circumstances. It was of the view that release of these records would undermine and have an adverse effect on managing similar issues in the future.
The HSE was of the view that the release of the information at issue would undermine trust between staff and HSE management. It was also of the opinion that release of the records would hamper future investigations. In essence, it stated that various members of staff, at different grades, had co-operated with management and given accounts of relevant matters, and that release of these records would mean that staff would not be willing to do so in future.
Having regard to the above, and to the content and context of the records concerned, I accept the HSE’s assertion that the management of its staff could reasonably be expected to be significantly affected by the release of information in the records at issue. Accordingly, I find that section 30(1)(b) applies to the information in pages 43 and 117-119.
The Public Interest
I am then required to apply the public interest balancing test under section 30(2) of the FOI Act.
On the one hand, section 30(1)(b) itself reflects the public interest in allowing an FOI body to effectively carry out its functions relating to management, including industrial relations and management of its staff. On the other hand, section 11(3) of the FOI Act provides that public bodies shall, in performing any function under the FOI Act, have regard to a number of matters, including the need to achieve greater openness in their activities and to strengthen their accountability and decision-making.
As noted above, when considering the public interest, it is important to have regard to the comments of the Supreme Court in the Rotunda case, and to distinguish a public interest from a private interest.
There is a strong public interest in openness and transparency in how the HSE carries out its functions relating to management. This includes dealing with disciplinary matters and handling complaints made by or against members of staff. As noted above, the applicant has not made any public interest arguments in favour of releases. As also noted above, I consider her interest in accessing the records to be a private rather than a public one.
On balance, I am satisfied that the public interest in allowing the HSE to effectively carry out its functions relating to industrial relations and management of its staff weighs in favour of the refusal of access to the records concerned. I find accordingly.
The HSE refused to grant access to pages 315-317, 431-444, 450-465, 471 and 475-479 on the basis of section 31(1)(a) of the FOI Act. These records relate to a legal claim made by the applicant against the HSE.
Section 31(1)(a) of the Act is a mandatory exemption which provides that a head shall refuse to grant an FOI request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). This exemption is not subject to a public interest test.
In deciding whether section 31(1)(a) applies, I must consider whether the records would be withheld on the ground of LPP in court proceedings. LPP enables the client to maintain the confidentiality of two types of communication:
(a) 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
(b) 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).
The HSE stated that it was relying on both limbs of LPP in relation to these records. During the course of this review, the HSE informed this Office that the claim which is the subject matter of these records is still ongoing. Having reviewed the HSE's submission and bearing in mind the content and context of the records concerned, I am satisfied that section 31(1)(a) applies. I am satisfied that the records comprise confidential communications between a 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 was the preparation for contemplated or pending litigation.
I find, therefore, that the HSE was justified in refusing access to these records under section 31(1)(a).
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The Commissioner's role in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records that a requester believes are in existence.
During the course of the review, this Office’s Investigator contacted the HSE and sought details of the searches undertaken to identify all records coming within the scope of the applicant’s request.
She also asked the HSE to address matters raised by the applicant in her request to this Office.
In its response, the HSE stated that while all relevant records located in response to the applicant’s request were described as “correspondence” on the document schedule provided, most of the records were emails. However, it also stated that it had conducted searches for “all records in any form” as sought by the applicant. The HSE further stated that, in line with its 2013 Records and Retention Policy, no records relating to the applicant’s request had been destroyed.
During the course of this review, this Office’s Investigator provided details of the searches the HSE stated it had carried out to locate relevant records to the applicant and invited her comment. The applicant did not provide any further evidence or submissions in this case.
In essence, the HSE said that the applicant’s request clearly specified the service which held her records and that it was established that relevant records were held by three sections: the Director of Nursing, the Assistant Director of Nursing, and the Rehabilitation and Recovery Service. It said that electronic searches were conducted of files held in these three areas and its position is that all 2017-2018 records relating to the applicant’s request have been located in these sections.
The HSE stated that it carried out additional searches on foot of this Office’s request for search details. It said that, as a result, it located a small number of records relating to 2015 in the Director of Nursing’s archive files, as well as text messages relating to the applicant and other staff members/service users. It stated that these text messages had not been located during its initial searches, as they were held on individual mobile phones and not in a central electronic file. I understand that the HSE went to some lengths to access and retrieve these messages. As noted above, the HSE has acknowledged that it had omitted records relating to 2014-2016 in error when processing the applicant’s request. A decision has not yet issued to the applicant on these records, despite this error being identified by the HSE in February 2019.
Having regard to the foregoing, while I am willing to accept that the HSE has now taken all reasonable steps to locate records relating to the applicant’s request, it is clear that it had not done so when it issued its effective position in January 2019. Furthermore, I am satisfied that further relevant records exist that have not been considered for release by the HSE. I do not consider that it would appropriate for this Office to make a first instance decision on these records, which have not all been collated or provided to this Office. Accordingly, I find that the HSE’s effective position that no further records coming within the scope of the applicant's request existed is not justified under section 15(1)(a) of the FOI Act. I therefore annul the HSE’s effective decision to refuse to grant access to records relating to 2014-2016 and any other records located after the HSE’s effective position of 29 January 2019 and direct it to make a new, first instance decision on these records.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the HSE to refuse access to all of the records sought by the applicant, in full or in part.
I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the HSE to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision by the HSE, as provided for at section 24(4) 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 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.