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Whether the HSE was justified in partially redacting the applicant's GP records and in refusing access to further relevant records on the ground that no such records exist or can be found

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 27 March 2015 the applicant submitted a request to the HSE for records from a number of named doctors and clinics and for records collected by Tusla during 2014 relating to her daughter. This review is concerned with the part of the applicant's request which related to her GP records.

In its decision of 29 May 2015, the HSE granted access to one record in full and granted partial access to a second record (identified as record 6 at internal review stage). The applicant requested an internal review of this decision on 19 June 2015, in which she asked that she be given all of her GP records. The HSE issued an internal review decision on 23 July 2015. It had identified five further records, of which four were released in full and one in part (record 5). The applicant sought a review by this Office of the HSE's decision on 31 July 2015.

Mr Art Foley of this Office wrote to the applicant on 3 November 2015 setting out details of the searches the HSE performed for records within the scope of her request. He informed the applicant of his view that the HSE was justified in its decision to refuse the applicant's request for further records and he also informed the applicant of his view that the HSE was justified in redacting the two records to which access had been granted in part. During the course of discussions with this Office, the applicant indicated that she is not satisfied with the explanations the HSE has offered in respect of her request. Therefore, I consider that this review should now be brought to a close by issue of a formal, binding decision.

In conducting this review, I have had regard to correspondence between the HSE and the applicant, to communications between this Office and the applicant, to communications between this Office and the HSE, and to the contents of the records released to the applicant.

Scope of Review

This review is concerned with whether the HSE was justified in redacting two records and whether it was justified in refusing the applicant's request for further records under section 15(1)(a) of the FOI Act, on the ground that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Preliminary Matters

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 disclosure of information contained in an exempt record. This means that the extent to which I can describe the information withheld form the relevant records is limited.

In this regard, record number 5 released to the applicant comprises of a typed version of another record identified by the HSE. The other record identified by the HSE is a completed standard report form for reporting child protection and welfare concerns to the HSE. The HSE, rather than redacting the information contained in this record it considered to be exempt from release, produced another record (record number 5) containing the information which would have been available to the applicant had the original record been redacted.

Analysis and Findings

Section 35 - Information Obtained In Confidence
Record 5 is a standard report form for reporting child protection and welfare concerns to the HSE that was completed by hand. A typed copy of part of the record was released to the applicant. The record contains personal information relating to a person or persons other than the applicant and I will deal with that matter separately below. The record also contains details of the identity of the person who completed the form. Essentially, the HSE's argument is that the identity of that person was given to it in confidence and that the person's identity is exempt from release under section 35(1)(a) of the FOI Act. For this reason, it also argues that the original handwritten record cannot be released.

While it seems to me that the HSE should have more properly relied upon section 42(m)(i) of the FOI Act, I accept that section 35(1)(a) is also of relevance.

Section 35(1)(a) provides for the mandatory refusal of a record containing information

• given to an FOI body in confidence
• on the understanding that it would be treated by it as confidential and,
• in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and,
• it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

 

Having examined the record at issue, I note that the person who completed the form has indicated a desire to remain anonymous. It is clearly very important that the HSE should continue to receive reports of child protection and welfare concerns. In my view, it is also important that the HSE should continue to receive details of the identity of the person making such reports and I accept that by failing to protect the identity of a person who wishes to remain anonymous, there is a substantial risk to the future supply of such information. Accordingly, I find that section 35(1)(a) applies.

Section 35(1)(a) does not apply in certain circumstances. I am satisfied that section 35(2) does not apply in this case. Under section 35(3), section 35(1)(a) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the request. While I accept that there is a public interest in promoting openness and transparency in how the HSE deals with reports of child protection and welfare concerns, in my view the public interest in ensuring the continued receipt of information such as that at issue outweighs, on balance, the public interest in release. Accordingly, I find that the HSE was justified in refusing access to the details relating to the person who completed record 5.

Section 37 - Personal information of third parties
The HSE has redacted information from both records under section 37 of the FOI Act. Record 6 is a record of the applicant's interactions with her former GP.

Section 37(1) of the FOI Act provides that an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Furthermore, section 37(7) provides that an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester, commonly referred to as joint personal information.

Having reviewed the relevant records and redactions, I am satisfied that all of the withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals. Accordingly I find that section 37(1) of the Act applies to the records at issue.

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 those circumstances arise in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) 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) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

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 release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply. In relation to paragraph (a), I must consider 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 considering the public interest test at section 37(5)(a), I have had regard to the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner (available at www.oic.gov.ie). In the judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, 'a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law' must be distinguished from a private interest for the purpose of section 37(5)(a).

The applicant stated that she is seeking her complete record in order to substantiate complaints she has against the HSE with respect to her treatment. It seems to me that this is, in essence, a private interest as opposed to a true public interest. Nevertheless, the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. On the other hand, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 and in 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.

The information at issue in this case is of a private and personal nature. The HSE have stated that it considers that the release of the redacted information would not be in the public interest, as it would impact negatively on its ability to receive information of the kind contained in the records at issue. While there is a public interest in openness and transparency in the manner in which the HSE performs its functions, I am of the opinion that this has met to some degree by the the partial release of the records. I do not consider that the public interest in the release of the redacted information in this instance outweighs, on balance, the significant public interest in protecting the privacy rights of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that the HSE was justified in its decision to refuse access to the information contained in the redactions made to records 5 and 6 under section 37(1) of the Act.

Section 15(1)(a)
Finally, I must consider whether the HSE was justified in it decision to refuse access to further records sought by the applicant under section 15(1)(a) of the FOI Act.

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. 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 her decision. The evidence in "search" cases consists of the steps actually taken to search for the 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 the records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website, www.oic.ie).

In a submission to this Office dated 30 October 2015, the HSE provided details of the searches it undertook for records within the scope of the applicant's review, and of the record management procedures utilised by the relevant GP. I note that Mr Foley has provided the applicant with these details. Therefore, while I do not propose to repeat all of these details here, I confirm that I have had regard to them for the purposes of this decision.

Essentially, the HSE stated that patient records held by the applicant's former GP are maintained electronically, and all interactions between a patient and the GP would be included in this electronic file. It stated that for this reason, it is unlikely that any records relating to the applicant (or her daughter) would have been misfiled in another location. It stated that the records which were located in response to the applicant's request are all records relating to the applicant held by the GP.

The applicant contends that a further record exists containing either details of a meeting between her former GP and another named person or comprising a letter in which concerns were raised concerning the manner in which she was being treated, from on or about 16-20 December 2014. The HSE has stated that despite the searches it has performed, no record matching either of the descriptions mentioned above have been located. In view of the information provided by the HSE relating to the searches undertaken, I find that it has taken all reasonable steps to ascertain the whereabouts of relevant records and that it was, therefore, justified in its decision to refuse access to further records under section 15(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE in this case.

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty,
Senior Investigator