Cinneadh
Mr. X & The Mental Health Commission (the Commission)
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-156264-X7R5L8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-156264-X7R5L8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Commission was justified in refusing a request for certain records relating to infection control measures sections 15(1)(c) and 37(6) of the FOI Act
25 May 2026
In an FOI request made on 2 October 2024, the applicant sought access to:
Copies of all correspondence from Mental Health Tribunal panel members about the applicable infection control measures, including mask wearing, for Tribunal members and/or hearings received by the Commission between 1 January 2021 and 31 July 2022 and any replies from the Commission.
Copies of all records relating to complaints of non-compliance with infection control measures (including Covid-19) during mental health tribunal hearings or related on-site attendance at approved centres between 1 January 2021 to 31 July 2022. The applicants wanted access to complaints received by the Commission from MHC panel members, HSE staff, patients or members of the public and also asked for records of the investigation of all such complaints and the decisions made in each of them to be included. The applicant said all records requested under items 1 and 2 could be redacted to remove individual names.
The list of Tribunal Chairpersons Panel members as of the following effective dates – 1 January 2022, 1 January 2023, 30 June 2023 and 1 January 2024.
The Commission did not reply within the timeframe specified by the FOI Act and the request was deemed refused. The applicant sought an internal review on 18 November 2024. The Commission issued its internal review decision on 9 December 2024. It refused part 1 under section 15(1)(c) of the Freedom of Information Act 2014 and it refused part 2 under section 37(6) of the Freedom of Information Act 2014. The Commission granted part 3 of the request. The applicant was unhappy with the response and sent a request for a review to this Office on 5 February 2025.
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 Commission as outlined above and to the correspondence between this Office and both parties on the matter. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned with whether the Commission was justified in its decision to refuse part 1 of the request under section 15(1)(c) of the FOI Act and in its decision to refuse to confirm or deny the existence of the records sought at part 2 of the request pursuant to section 37(6) of the FOI Act.
Before I address the substantive matters arising, I wish to note that under section 22(12)(b) of the FOI Act, a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the FOI body satisfies the Information Commissioner that the decision was justified. This means that the onus is on the Commission of satisfying this Office that its decision to refuse the request was justified in this case. In its judgment in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that the head of the FOI body dealing with the request must be conscious at all stages of the process that the overriding presumption is one of disclosure, with the result that any refusal to disclose must be fully reasoned and sufficiently coherent, fact specific, and logically connected to the document or record such that the justification is sufficient.
Refusal of Part 1 under section 15(1)(c)
Section 15(1)(c) provides for the refusal of a request where the FOI body considers that granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of records concerned as to cause a substantial and unreasonable interference with, or disruption of, work of the body (including disruption of work in a particular functional area). However, section 15(4) provides that a request cannot be refused under section 15(1)(c) unless the body has first assisted, or offered to assist, the requester in amending the request so that it no longer falls to be refused under that section.
The Commission refused part 1 of the request under section 15(1)(c) of the FOI Act 2014. In its submissions to this Office, it acknowledged that it had not assisted or offered to assist the requester with a view to amending the relevant part of the request pursuant to section 15(4). It did, however, indicate that a huge volume of correspondence would have been generated during the relevant time-period across a number of different file sharing and storage platforms.
The terms of section 15(4) are clear. The FOI body must assist, or offer to assist, the requester in amending the request before it can be refused under section 15(1)(c). In this case, it is evident that the Commission made no offer of assistance to the applicant to refine the request which means the Commission did not comply with the provisions of section 15(4). As such I find that the Commission was not justified in refusing part 1 of the applicant’s request under section 15(1)(c) of the FOI Act. Nevertheless, I do not consider it appropriate to simply direct the release of the records in question given the Commission’s submissions in respect of the amount of work that would be required to process the request. Instead, I consider that the appropriate course of action to take is to annul the Commission’s decision and to remit the matter back for consideration afresh. If the Commission wishes to rely on section 15(1)(c) to refuse the request, it will first have to comply with section 15(4) before doing so.
Refusal of Part 2 under Section 37(6)
Section 37(6) is a “neither confirm nor deny provision”. The purpose of “neither confirm nor deny” provisions is to allow a public body to refuse to confirm or deny the existence of records sought where disclosure of the existence or non-existence of records could cause the types of harm envisaged by the relevant exemption provision. In deciding whether to avail of such provisions, the public body’s analysis may be carried out on a hypothetical basis, since the records may or may not in fact exist. Accordingly, there must be some additional factor - usually relating to the terms of the FOI request itself – which the public body can establish would give rise to the harm envisaged by the applicable exemption were it to confirm whether or not relevant records exist.
The Commission’s primary ground for refusing to disclose the existence or non-existence of relevant records is based on its view that section 37(6) of the FOI Act applies. Section 37(1) of the Act provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of third-party personal information. For the section to apply, release of the record must involve the disclosure of information relating to an identifiable individual. Section 37(6) provides as follows:
Where:
a) an FOI request relates to a record to which subsection (1) applies but to which subsection (2) and (5) do not apply or would not, if the record existed, apply, and
b) in the opinion of the head concerned the disclosure of the existence or non-existence of the record would have the effect specified in subsection (1), he or she shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists.
The overall purpose of section 37(6) is to protect third party personal information in circumstances where the disclosure of the existence, or non-existence, of particular records would effectively disclose that party’s personal information. The usefulness of the provision depends upon it being invoked both in instances in which relevant records do not exist as well as in cases in which relevant records do exist.
Consideration of section 37(6) must be conducted on the basis of what would be the case were the FOI body to hold records of the kind sought by the requester, rather than on whether or not such records are actually held. For section 37(6) to apply, the following requirements must be satisfied:
. the record sought must be of a type whose disclosure would disclose personal information relating to a third party, if it existed, and which would be exempt from release by virtue of section 37(1) of the FOI Act;
. none of the exceptions to the section 37(1) exemption, contained at subsections (2) or (5) of section 37, applies or, in the case where relevant records do not exist, would apply if such records did exist, and
. the FOI body must be of the view that to state whether or not relevant records exist would, in itself, disclose personal information of a third party.
The first matter for consideration is whether the records sought are of a type which would disclose the personal information of a third party, if they existed, and which would be exempt from release by virtue of section 37(1). This generally depends on the nature of the records sought and may also depend on the manner in which the request has been framed.
In this case, the applicant sought records relating to “complaints of non-compliance with infection control measures (including Covid-19) during mental health tribunal hearings or related on-site attendance at approved centres between 1 January 2021 to 31 July 2022”. The request asked the Commission to “include complaints received by the Commission from MHC panel members, HSE staff, patients or members of the public”.
The applicant contends in correspondence with this Office that the Commission erred in reaching its decision. The applicant says there is a public interest in being transparent about issues of non-compliance with infection control measures in a health setting and if records exist, the public interest served by their release would clearly outweigh the interest in upholding the right to privacy of any individuals concerned. The applicant does not accept that disclosing nothing more than the fact of whether any records exist of complaints of non-compliance with infection control measures in the period between 1 January 2021 to 31 July 2022 would reveal any personal information for the purposes of section 2 and section 37 of the Act.
The request is general in nature. It is not specific to any particular individual, nor does it refer to a specific cohort of individuals, asking to include all complaints received from panel members, staff, patients and members of the public. Having regard to the description of the records sought, I am satisfied that the disclosure of whether relevant records do or do not exist would disclose nothing more than the fact that the Commission holds, or does not hold, records relating to complaints of non-compliance with infection control measures (including Covid-19) during mental health tribunal hearings. It would disclose nothing about the type of records or their contents if they existed. I accept that it is possible that such records, if they existed, could conceivably contain personal information. However, I fail to see how the disclosure of nothing more than the existence or otherwise of relevant records could possibly involve the disclosure of personal information relating to identifiable individuals especially given the large number of individuals engaged as panel members in this time period. Confirming or denying the existence of records is not to be conflated with disclosure of the records themselves. Accordingly, I find that the Commission’s decision to refuse to confirm or deny the existence of relevant records pursuant to section 37(6) is not justified. Again, I am satisfied that the most appropriate course of action to take is to annul the Commission’s decision and remit the matter back to the Commission. The effect of this is that the Commission must consider the applicant’s request afresh and make a new, first instance decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the Council’s fresh decision.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Commission’s decision to refuse parts 1 and 2 of the applicant’s request and direct it to carry out a fresh decision-making process on those parts of the request.
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.
Stephen Rafferty
Senior Investigator