Cinneadh
Ms A and National Ambulance Service
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-152408-L8L2Q7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-152408-L8L2Q7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the NAS was justified in refusing access to clinical case reviews on the basis of sections 35(1) and 37(1) of the FOI Act
13 June 2026
In a request dated 29 May 2024, the applicant sought access to clinical case reviews in respect of adverse clinical events undertaken by the NAS from 2022, 2023 and 2024. In a decision dated 28 June 2024, the NAS refused the request on the basis of section 37(1) of the FOI Act. It said that it was satisfied that release of the information requested could identify specific patients. On 22 July 2024, the applicant sought an internal review of the FOI body’s decision. She made submissions in respect of the public interest in release. She also said that no effort had been made to redact identifiable information. She said that the NAS had not explained how disclosure of the information would allow an individual to be identified. She also noted that no schedule of records was provided.
In a decision dated 20 August 2024, the NAS said that it was varying the original decision made. However, in reality, the FOI body affirmed its position. It noted that the applicant had highlighted that an explanation as to how disclosure would identify individuals had not been provided. It said that this should have been explained clearly. The NAS said that the number of cases was so small that disclosure could easily identify individuals. It said that the redaction of information would not guarantee confidentiality. With reference to the schedule of records, the body referenced a particular incident management system. The NAS said that there is no schedule to attach and referenced section 37(6) of the FOI Act. It again said that the relatively small number of case reviews in each year would give rise to the disclosure of personal information. On 30 September 2024, the applicant applied to this Office for a review of the decision of the NAS.
During the course of the review, and in submissions to this Office, the NAS said that it was also relying on section 35(1) of the FOI Act in support of its refusal of the records. I will consider this matter further below as relevant.
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 applicant’s comments in her application for review and to the submissions made by the FOI body in support of its decision. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The NAS identified six records as coming within the scope of the review. It has refused access to the records in full. This review is concerned solely with whether the FOI body was justified in refusing the applicant’s request on the basis of sections 35(1) and 37(1) of the FOI Act.
Before I address the substantive issues arising, I would like to make some preliminary comments. First, I note that the NAS did not provide the applicant with an indication of the number of records identified as relevant to the request or a schedule of those records. A schedule was provided to this Office during the course of the review. In its internal review decision, the body appeared to be relying on section 37(6) of the FOI Act in support of its refusal to provide a schedule. That section is called a ‘neither confirm nor deny’ provision. It provides for the refusal of a request for access to a record and for the refusal to disclose whether or not such a record exists, provided the requirements of the subsection are met. The overall purpose of section 37(6) is to protect the personal information of a third party in situations where knowledge of the existence, or non-existence, of particular records would effectively disclose that party’s personal information. In communications with the NAS, I queried why the provision was cited, given that the body had already acknowledged that records relating to adverse clinical incidents exist. I also noted that the schedule provided to this Office was high level in nature. In response, the NAS said that it was not seeking to rely on section 37(6). It said that it now considers that the schedule of records could be released.
The Central Policy Unit of the Department of Public Expenditure and Reform has published, pursuant to section 48(1) of the Act, a Code of Practice on FOI for public bodies (see www.foi.gov.ie). Under section 48(3) of the Act, FOI bodies are required to have regard to that Code in the performance of their functions under the Act. The Code provides that a schedule should be included with decisions providing details of those records being released in full, those to which partial access is being given, and those being refused. The schedule should set out the reasons why access is not being granted in full or in part and reference relevant sections of the Act where refusals are made. I expect the NAS to release the schedule to the applicant if it has not done so already and to take measures to ensure that it has regard to the Code of Practice when processing all future FOI requests.
Second, although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.
Finally, 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.
Section 37(1) of the FOI Act provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by the FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, comprises personal information, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual.
It is important to note that personal information is information about an identifiable individual. Where information may not, on the face of it, be about an identifiable individual, it may still be personal information if it allows the individual to be identified. An individual may not be named in a record yet may still be identifiable.
The position of the NAS is that the records contain sensitive personal information given at a time when the relevant patient and their family are extremely vulnerable. In its submissions to this Office, it said that there are only a small number of cases reviewed each year. It said that all of these are isolated incidents relating to one specific patient. It said that the risk of identifying patients based on the small number of case reviews and the details contained within is too high. It said that the clinical data and information about the status of the patient contained in the records could identify them.
The NAS was asked whether a copy of the relevant records could be provided with the exempt information removed. In response, it said that it considered releasing redacted records. However, it said that release of the records in this manner would not convey enough information to outweigh the risk of a patient being identified and any distress to the patient and their family that may follow. It said that if the records are redacted, the remaining information will be a list of actions and recommendations without any background or context. It said that this would not be informative and could fail to make sense to the reader.
In her application to this Office, the applicant said that she was unhappy that no effort was made to release the records in an anonymised fashion. She also expressed her dissatisfaction in the refusal of NAS to provide a schedule of records. She said that she thinks a decision has been taken within the organisation not to release the records and that “zero effort” was made to take any steps towards complying with the letter or spirit of the FOI Act. She said that, as she understands it, some of the cases in relation to which adverse incident reports would be compiled involve people who have died and she said that this should be taken into account in considering the release of personal information. She made certain other submissions which relate to the public interest test at section 37(5) and which I will consider below as appropriate.
As noted above, I am limited in the extent to which I can describe the content of the records at issue. Section 25(3) also has implications for the extent to which I can give reasons for my decision. The records comprise case reviews which include detail in respect of particular incidents as well as learnings, agreed actions, outcomes and recommendations. Having carefully considered the content of the records, I accept that they contain sensitive personal information relating to identifiable third parties. While the parties may not necessarily be named in each of the records, I am satisfied that the inclusion of detailed information pertaining to particular medical incidents could reasonably lead to the identification of the individuals in question. In respect of certain submissions advanced by the applicant, I would note that section 37(1) expressly provides for the protection of personal information relating to deceased individuals.
Notwithstanding the above, I have considered whether certain information could be released without identifying any parties. Having reviewed the records, I accept that certain sections of the case reviews, for example those pertaining to findings and agreed actions, do not necessarily, in and of themselves, contain personal information. However, as I have outlined above, the requirement under section 18 to grant partial access to records, where it is practicable to do so, does not apply if the copy of the record to be released would be misleading. Being ‘practicable’ necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records. In my view, it would not be practicable to release redacted versions of the case reviews at issue, without such versions being misleading. The redacted versions would contain little or no information to contextualise the findings and actions outlined. I consider that the release of such detail without the necessary context would be misleading. Accordingly, I find that section 37(1) applies to the records in their entirety. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37.
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances are relevant in this case.
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. I am satisfied that the individuals in question would not benefit from the release of the information at issue and 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 individuals to whom the information relates.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body 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. However, in doing so, I have also had regard to the judgment of the Supreme Court inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In its submissions, the NAS outlined factors it considered in favour and against release of the records. In favour of release, it referenced the public being made aware of the challenges it encounters in the day to day running of the service. It also said that release would allow the public to see how the NAS learns from experiences and improves services. Against release, the NAS referenced the distress release would cause to patients and their families if the patient was identifiable. It referenced the public interest in protecting the privacy rights of individuals, including the deceased. It also referenced the legitimate expectation of individuals that health services will protect their privacy. It referenced the inclusion in the records of specific health data relating to patients. It said that there is a public interest in the organisation being able to conduct its business in a confidential manner.
The NAS said that the public interest is not served by releasing the records. It said that it is a professional and reputable organisation. It said that if a patient believes that aspects of their case or confidential information has been disclosed without their consent or knowledge, it could significantly undermine the public trust and confidence in the NAS. It said that even where an individual may not be identifiable to the broader public, the publication of such details could cause distress to the patient or their family, particularly if it forces them to relive a traumatic experience.
In her application to this Office, the applicant said that there is a strong public interest in releasing the records because it would allow scrutiny of the extent and nature of adverse incidents within the emergency services. The applicant also noted that some of the case reviews likely relate to individuals who are now deceased and she said that this should be taken into account in considering release. She said that the stated rationale of the FOI Act is to enable access to information to the greatest possible extent. She referred to the public interest factors outlined in the decision of the NAS and said that only one reason not to release was referenced: potential identification. She referenced guidance issued by this Office and previous decisions in which it was found that redaction should be used to allow the release of records.
I have carefully considered the submissions advanced by the parties and the content of the records at issue. I accept that the release of the records would enable the public to scrutinise the manner in which incidents are reviewed by the NAS. I also accept that there is a public interest in openness and accountability in relation to what the applicant describes as ‘adverse incidents’ which occur in the provision of State services. However, in respect of the applicant’s position that individuals referenced in the records may be deceased and that this should be taken into account, I again note that section 37(1) expressly provides for the protection of personal information relating to deceased individuals.
While I have accepted that there are public interest factors in favour of release of the records, I must consider whether those public interests are sufficiently strong to outweigh the public interest in protecting privacy. I have considered the extent to which the right to privacy of the third parties would be breached by release of the information at issue. While I note that certain records do not explicitly name the individual in question, I have already accepted that they contain personal information relating to identifiable individuals. I have also accepted that releasing redacted copies would be misleading. The records at issue concern intensely private matters. The reviews relate to the management of medical emergencies and contain information in respect of the health status, diagnosis and treatment of relevant third parties as well as medical outcomes. I take the view that the personal information in question is among the most sensitive and that, accordingly, the need for the protection of the right to privacy in such circumstances is very great.
The FOI Act 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
Given the strong public interest in protecting the right to privacy, and the particularly sensitive nature of the information at issue in this case, I do not accept that the public interest in release outweighs the right to privacy of the relevant individuals. I find, therefore, that section 37(5)(a) does not apply. Accordingly, I find that the NAS was justified in refusing access to the records at issue on the basis of section 37(1) of the FOI Act.
As I have found section 37(1) to apply, I do not need to consider the FOI body’s reliance on section 35(1) of the Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the NAS. I find that it was justified in refusing access to the records at issue on the basis of section 37(1).
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.
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Alison Connolly
Investigator