Case number: 180157
On 16 June 2017, the applicant made an FOI request to the HSA for the following:
1. Records referring to him by name, job, or otherwise implied;
2. Records referring to him as outlined in 1., to include any records in various formats relating to a particular investigation;
3. Records in any of the formats outlined in 2., relating to conversations with third parties where his name is mentioned or referred to as outlined in 1.;
4. Records relating to a named company in any formats as outlined in 1. and 2.;
5. Any and all other records in any formats as outlined in 1. and 2. above.
On 2 August 2017, as requested by the HSA, the applicant elaborated on the sort of records he was requesting. He said that they included reports created by experts engaged by the HSA and records of contacts between the HSA and An Garda Síochána (AGS) that related to the applicant. I cannot go into further detail on either the applicant's request or his clarification thereof because to do so would disclose the identity of the applicant and others. However, in very general terms, the records relate to the HSA's investigation of a critical incident that affected a number of public servants.
The HSA's decision of 8 September 2017 partially granted the request. It relied on section 15(1)(a) (records not held), various provisions of section 32 (law enforcement and public safety), section 35(1)(a) (information provided in confidence) and section 37 (personal information) in relation to the withheld records or parts of records.
The HSA received the applicant's internal review application on 5 October 2017. Its internal review decision of 20 October 2017 granted partial access to a further record but otherwise affirmed its refusal of the remaining parts. It relied on sections 15(1)(a), 30(1)(a) (prejudice to investigation procedures), 35(1)(a) and 37.
On 17 April 2018, the applicant sought a review by this Office of the HSA's decision.
I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the HSA, and the applicant. I have had regard also to the records considered by the HSA and to the provisions of the FOI Act.
As the applicant is aware, in light of his comments in his application, the review will not consider the HSA's redaction of names, initials and job titles/grades of third parties.
With this exception, this review is confined to whether the HSA has justified its refusal to grant access to parts of the records. It does not extend to considering matters such as the HSA's investigation procedures or record retention policies.
In making my decision, I must comply with section 25(3) of the FOI Act, which requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, the description that I can give of the records and the detail in my analysis is very limited.
In addition, 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 public 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).
While in this case the HSA has redacted parts of records and granted the remainder, the Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.
The HSA is relying on section 15(1)(a) in relation to part 4 of the request as subsequently clarified by the applicant.
Section 15(1)(a) provides that a request for access to a record may be refused if the record does not exist, or if a record cannot be found after all reasonable steps to ascertain its whereabouts have been taken. This Office's review is confined to assessing whether or not the HSA has justified its reliance on section 15(1)(a). It is not normally the Commissioner's function to search for records.
This Office gave the applicant the HSA's explanation of why it holds no records relevant to part 4. I cannot set out those details here lest they reveal the applicant's identity. He has not commented on the HSA's position. In the circumstances, I accept the explanation given and see no reason to dispute the HSA's submission that it holds no records covered by part 4. I find that section 15(1)(a) applies.
Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing personal information. "Personal information" is defined at section 2 of the FOI Act as "information about an identifiable individual that -
(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 a public body on the understanding that it would be treated by it as confidential"
Section 2 also lists 14 examples of what must be considered to be personal information. They include (iii) "information relating to the employment or employment history of the individual", (v) "information relating to the individual falling within section 11(6)(a)", (vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual, (xiii) "information relating to property of the individual ... " and (xiv) "the views or opinions of another person about the individual". Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met. Section 11(6)(a) is concerned with personnel records of staff members of FOI bodies, including records regarding the staff member's competence or ability as an employee and evaluations of his or her performance.
The applicant says that if he had been prosecuted, the HSA would have to disclose and support the information it says was given to it in confidence. However, any entitlement that the applicant may have, or may have had, to information outside of the FOI Act does not, of itself, give him any entitlement to that information under FOI.
The HSA argues that identifying details, third parties' accounts of events and details of third parties' involvement in an investigation amount to personal information. While the applicant has excluded names/initials and job titles, the HSA also says that, in any event, the context of the withheld material would enable identification of individuals involved. Finally, the HSA says that the exceptions to what may be considered to be the personal information of public servants, as provided for in section 2 of the FOI Act, do not apply in this case, particularly given the context in which the records were created.
I have given careful consideration to the content of the records, the context in which they were created and the requirements of section 18. I am satisfied that the withheld information meets the definition of personal information. I am also satisfied that the narrow exceptions to what may be considered to be the personal information of public servants are not relevant in this case.
In summary, I am satisfied that the records contain personal information about identifiable individuals other than the applicant, and personal information about the applicant that is inextricably linked to personal information about other identifiable individuals (i.e. joint personal information).
In so far as the joint personal information is concerned, and while it is the case that section 37(2)(a) provides for the release of information relating to the requester, section 37(7) must also be considered. Section 37(7) provides for refusal of a request where access to the record sought would, in addition to disclosing personal information relating to the requester, disclose personal information relating to individuals other than the requester. In other words, notwithstanding the provisions of section 37(2)(a), section 37(7) requires the refusal of joint personal information.
I find the withheld records or parts of records to be exempt under section 37(1) of the FOI Act. Before I move on to consider the exceptions to section 37(1), I will deal with the applicant's view that reports by expert witnesses should not be redacted. It is unclear if this argument is in the context of section 37 or other provisions on which the HSA has relied. In any event, the HSA has withheld some information about the experts that I accept amounts to their personal information. However, the majority of the withheld material concerns information given by other parties to those experts, and, as such, comprises personal information relating to those other parties (and in some cases, the applicant).
There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. I have already dealt with section 37(2)(a) and I am satisfied that the remaining circumstances do not arise in this case. That is to say, (b) that the third parties have not consented to the release of their personal 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.
In particular, I have no reason to consider section 37(2)(c) to apply on the basis of the applicant's assertion that at least one of the expert witness reports was "presumably ... submitted in the prosecution" of another party in relation to the incident the subject of the HSA investigation.
Section 37(5) provides that a record, which is otherwise exempt under section 37(1), may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I do not consider that the release of the information at issue would benefit the third parties, as envisaged by section 37(5)(b) of the FOI Act.
On the matter of 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 1 I.R. 729,  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. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally. It follows that I cannot take into account any private interests that the applicant may have in the grant of access to the withheld information.
Furthermore, McDermott J., in his December 2016 judgment in the case of F.P. and the Information Commissioner [2014 No. 114 MCA] ("the F.P. case"), said that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that "the ‘public interest’ in granting access is not to be determined on the basis of the appellant’s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.”
The applicant considers that his dissatisfaction with the actions of the HSA and other bodies in relation to the investigation and other matters weighs in favour of the grant of access to the records. However, it is clear from McDermott J.'s comments that any such dissatisfaction is not relevant to my consideration of the public interest. I should also make it clear that I have no remit to consider, or make findings on, the adequacy of the actions of any FOI or public sector body.
The FOI Act recognises a public interest in ensuring the openness and accountability regarding how FOI bodies perform their functions. In the case at hand, there is a public interest in establishing that the HSA carried out its functions in dealing with the applicant in a way that was consistent with the principles of natural and constitutional justice. I consider this public interest to be entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It has been served to served to some extent by the release of some records. However, I am not satisfied that it would be significantly furthered by directing that access be granted to the remaining withheld information.
On the other hand, both 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). It is also relevant that the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large. The applicant is aware of this through a separate application for review involving the HSA (Case No 180158). Given the context in which the records in this case were created and the sensitive nature of the withheld personal information, I am satisfied that the grant of access to the records would significantly breach the rights to privacy of the various third parties whose personal information is in the records.
Having considered the weight of the competing public interests, I find that the public interest in favour of granting access to the withheld information does not outweigh the public interest that the right to privacy of the third parties should be upheld.
In the circumstances there is no need for me to consider the HSA's application of other provisions of the FOI Act to the records.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSA's refusal to fully grant the applicant's request under sections 15(1)(a) and 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.