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Whether the Board was justified in refusing to release certain records relating to a complaint the applicant made about a named nurse under section 37 of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 12 November 2014, the applicant made a request to the Board for access to the complete file relating to a complaint she made about a named nurse. In its decision of 10 December 2014, the Board released copies of correspondence between the applicant and the Board but made no decision on the remaining records. It appears that further correspondence ensued between the applicant and the Board, following which, on 6 March 2015, the applicant sought an internal review of the Board's decision. On 30 March 2015, the Board issued its internal review decision to refuse access to any further records.

On 10 April 2015, the applicant sought a review by this Office of the Board's decision. In carrying out my review, I have had regard to the correspondence between the Board and the applicant as set out above and to the correspondence between this Office and both the Board and the applicant on the matter. I have also had regard to the contents of the records at issue, copies of which were sent to this Office for the purposes of the review.

Scope of Review

In its submission of 22 May 2015, which issued through its solicitors, the Board identified four schedules of records which it identified as coming within the scope of the applicant's request. Schedule 1 contained seven records to which the Board sought to refuse access. Schedule 2 contained three records which, according to the Schedule, could be released in part. Record 3 on that Schedule post-dated the FOI request. Schedule three contained 19 records comprising the 18 records released at original decision stage and one further record which post-dated the request. Schedule 4 contained 4 additional records which, according to the Schedule, the Board was prepared to released. All four records on Schedule 4 post-dated the request.

As none of the records which post-date the request existed when the applicant submitted her FOI request, all are outside the scope of this review. As a result, records 1 to 7 from Schedule 1 and records 1 and 2 from Schedule 2 remained to be considered at that stage. However, in a subsequent submission dated 24 September 2015, the Board provided a further Schedule (Schedule A) which contained records 2 to 7 from Schedule 1 (record 1 from Schedule 1 was not included), records 1 and 2 from Schedule 2, and two additional records that had not previously been identified, bringing the total of records remaining to be considered to 11.

For ease of reference, I have adopted the numbering used by the Board in Schedule A, as it includes all of the records at issue except record 1 from Schedule 1, which I shall refer to as Record 11. Record 11 comprises a letter from the Irish Nurses and Midwives Organisation (INMO) to the Board dated 28 November 2013 and a number of attachments. I should also explain that while the Board indicated at various stages during the review that it was prepared to grant partial access to certain records, it subsequently decided not to do so. Accordingly the entire contents of each of the 11 records remains at issue.

The scope of this review, therefore, is confined to the question of whether the Board was justified in refusing access to the 11 records in question.

Preliminary Matters

While I note that the Board has recently been brought within the FOI regime and is relatively new to processing requests, there are a number of comments I wish to make concerning its processing of the original request and, more specifically, concerning the manner in which it engaged with this Office during the course of the review.

The FOI Act generally requires FOI bodies to process requests within four weeks of receipt. The Act acknowledges, however, that this may not always be possible and, under section 9, a body may extend the period for consideration of the request by a period of up to four additional weeks if it considers that compliance with the four week time-frame is not reasonably possible by virtue of the number of records involved. Where a body wishes to extend the period for considering the request under section 9, it must notify the requester in writing of having done so and of the reasons for having done so. The Board did not issue such a notification in this case, nor would I consider such a notification appropriate given the small number of records involved.

Instead, the Board simply informed the requester in its original decision that it was not in a position to issue a decision on a number of the records as it had not completed its deliberations on the matter. This is not an acceptable course of action for the Board to have taken. Regardless of the fact that it is new to FOI, the time-frame for processing requests is a fundamental provision of which the Board should have been fully aware.

On the matter of the manner in which the Board engaged with this Office during the course of the review, it seems to me that the review was delayed considerably as a result of its consistent failure to address requests for information by this Office in a prompt fashion. I note, for example, that this Office sought copies of the subject records on 21 April 2015 to allow the review to proceed. The Board did not provide the records until 7 July 2015, a full 11 weeks later. In a letter this Office received on 14 May 2015, the Board stated that it was taking legal advice on the request by this Office, and yet at the same time stated that it was cognisant of its obligations both in terms of the letter and spirit of the FOI Act. Subsequently, following concerns about providing copies of the records to this Office as a result of correspondence it received from the INMO on the matter, I note that the Board's solicitors advised the Board that no further information should be provided to this Office, pending a response by this Office to the INMO. On other occasions when this Office sought clarification of matters relevant to the review the Board's solicitors sought extensions of the time within which replies were sought.

The FOI Act provides that this Office should, in so far as practicable, make a decision within four months of receipt of an application for review. In this case, three of the four months had passed before the subject records were provided. Under section 45 of the Act, the Commissioner may, for the purposes of a review, require any person who is in possession of information or has a record in his or her power or control that is considered to be relevant to the review to furnish any such information or record to the Commissioner. I would ask the Board to have due regard to the powers of the Commissioner in future reviews and to ensure that any future requests for information are dealt with promptly and in accordance with the provisions of the FOI Act.

Analysis and Findings

The Board has cited a number of exemptions in refusing access to the records at issue, including sections 29, 30(1)(a), 31, 35(1)(a), 35(1)(b) and 37 of the FOI Act. Having examined the records in question, it seems to me that section 37 is the most relevant and I will consider the applicability of that exemption in the first instance. Before I do so, however, I would like to draw attention to the following relevant provisions.

Section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. However, the Commissioner takes the view that neither the definition of a record under section 2 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, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Secondly, it should be noted that the courts have taken the view that, under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large.

Section 37
Section 37(1) provides for the mandatory refusal of access to a record if it would involve the disclosure of personal information of parties other than the requester. Section 37(7) provides for the mandatory refusal of records containing joint personal information (i.e personal information about the applicant that is inextricably linked to personal information about another party/parties). Sections 37(1) and 37(7) are both subject to the other provisions of section 37.

Section 2 of the FOI Act defines "personal information" as information about an identifiable individual which would, "in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual", or is held by an FOI body on the understanding that it would be treated as confidential. It goes on to list 12 specific categories of information that comprise personal information. Of these, the following categories are of relevance to the present case: (iii) information relating to the employment or employment history of the individual and (xii) the views or opinions of another person about the individual.

Section 25(3) of the FOI Act precludes me from describing the records at issue in detail, so I shall describe them in general terms. They comprise internal Board files memos/emails (Records 2-4, 8 and 9), extracts from PPC minutes (Records 5 and 10), correspondence relating to the complaint (Records 1, 7 and 11) and a copy of the PPC's report (Record 6).

The records have their background in a complaint of alleged misconduct made by the applicant against a specific nurse. I am satisfied that the records clearly relate to the nurse's employment or employment history, and that correspondence from other medical professionals speaking on the nurse's behalf contain the views or opinions of those persons as to the nurse's character. Accordingly, I am satisfied that the information in the records relating to the nurse falls within the definition of personal information in the Act. While section 2 of the Act provides an exception to the definition of personal information, i.e where the individual "is or was a service provider" to a public body, I am satisfied, given the nature of the information at issue, that the exceptions do not apply.

Having carefully examined the records concerned, I am satisfied that all 11 records contain either personal information relating to the nurse or joint personal information relating to the applicant and the nurse. The FOI request in this case was quite specific in that it sought access to a file relating to a complaint made against a specific nurse. In such circumstances, it seems to me that the release of the records, even with the identity of the nurse redacted, would result in the disclosure of personal information relating to an identifiable individual. Accordingly, I find that section 37(1) applies in the case of all 11 records. The effect of section 37(1) is that a record disclosing personal information of a third party or third parties cannot be released to another person unless one of the other relevant provisions of section 37 applies - in this case section 37(2) or 37(5).

There are some circumstances, provided for at section 37(2) of the FOI Act, in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) (a), (b), (c), (d), or (e) arise in this case. Consequently, I find that section 37(2) does not apply to the details at issue here. Section 37(5) of the FOI Act provides that a request which 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 public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual concerned. In my view the grant of the request would not benefit the individual to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.

This leaves me to consider, under section 37(5)(a), whether the public interest in granting the request outweighs, on balance, the public interest in upholding the privacy rights of the individual concerned.

I accept that there is a strong public interest in openness and transparency in relation to the regulation of medical professionals and how investigations are carried out by the Board on foot of complaints. 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.

It seems to me that the public interest in openness and transparency in relation to how the Board examined the applicant's complaint has been served to some extent by the release of certain information to the applicant. The Board stated that it kept the applicant informed of the progress of her complaint. I also note that it provided her with a copy of the procedures of the Board's Preliminary Proceedings Committee which considers complaints and provides an opinion to the Board about what action, if any, should be taken. The Board also informed the applicant of its findings in respect of the complaint. While I accept that the release of the records at issue would serve to further enhance the level of openness and accountability, the question I must consider is whether the public interest in doing so would outweigh, on balance, the public interest in protecting the privacy rights of the nurse against whom the complaint was made.

The records at issue in this case relate to an inherently private matter, in so far as they relate to an allegation of misconduct. Having carefully weighed the competing public interest factors in favour of and against release, in the circumstances of this case I consider that, on balance, the public interest that the right to privacy of the third party to whom the records at issue relates should be upheld outweighs the public interest that access to those records should be granted. I find, therefore, that the Board was justified in refusing access to the records concerned under section 37 of the FOI Act.

Having found that section 37 applies, I do not need to consider the applicability of the other exemptions cited by the Board to the records at issue.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the Board's decision to refuse access to the records sought.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks after notice of the decision was given.

Stephen Rafferty
Senior Investigator