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Case Number: 160327

Whether the refusal of access by the HSE to records relating to the applicant is justified under sections 29, 30, and 35 of the FOI Act

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

Background

On 8 June 2015 the applicant made an FOI request to the HSE for: (a) all written data pertaining to him held on file or email at a certain hospital by certain named members of staff from 16/04/15 to the date of his request, (b) all emails received or sent by certain named members of staff (or their subordinates/advisers) containing a reference to him and (c) all handwritten notes from meetings and other informal sessions with a copy of all records kept containing any form of reference to him etc. There appears to have been some confusion as to whether the original request was an FOI request or what the HSE termed "an administrative access request". However, it is clear that the applicant intended to make an FOI request and that at internal review stage, the HSE dealt with the request under the FOI Act.

By letter dated 6 October 2016, the HSE granted access to some of the information sought and withheld access to the remaining records on the grounds that they were exempt under sections 29, 35 and 36 of the FOI Act. On 25 January 2016, the applicant applied for an internal review. By letter dated 17 February 2016, the HSE issued its internal review decision, in which it varied its original decision, by releasing additional information and withholding access to the remaining records, once more on the ground that they were exempt under sections 29, 35 and 36 of the FOI Act. On 9 August 2016 the applicant applied to this Office for a review of the HSE's decision.

In conducting this review I have had regard to the HSE's decision on the matter; the HSE's communications with the applicant and with this Office; the applicant's communications with the HSE and with this Office; the content of the withheld records, provided to this Office by the HSE for the purposes of this review; and to the provisions of the FOI Act.

Preliminary Matters

Before I consider the exemptions claimed, I wish to make the following points.

First, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the HSE to satisfy me that its decision is justified.

Secondly, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Thirdly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. I take 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, I am not in favour of the cutting or "dissecting" of records to such an extent.

Finally, the HSE did not provide reasons for refusing access to the records in either its original or internal review decision. It merely cited the provisions on which it relied. While this may originally have occurred because of the confusion over whether the request was made under FOI, I cannot understand why the internal review decision did not comply with the requirements of the FOI Act. I would remind all FOI bodies that sections 13 and 21 of the FOI Act require them to give reasons for refusing access to records, the findings on any material issues relevant and to apply the public interest test where relevant. The Central Policy Unit of the Department of Public Expenditure and Reform publishes advice and guidelines, including on the application of exemptions in decision-making. One would expect HSE decision-makers to make use of these. In fact, under section 48(3) of the FOI Act, FOI bodies are obliged to have regard to such guidelines. This Office also publishes guidance notes on various sections of the FOI Act.

Scope of the Review

When referring to the records, I have adopted the numbering used by the HSE and refer to each record by its first page number.

During the review, the HSE clarified that it had withheld access to the following records:181- 212 (except for 183, 186, 198, 202); 219 - 221; 241 - 248; and 349 - 363 (except for 362). It made submissions on section 30(1) of the FOI Act in addition to the other exemptions invoked.

On reviewing the content of the records and having regard to the applicant's FOI request, I consider that the following records fall within the scope of this review: 187, 190, 192, 194 (only the email of 18/05/15 at 23:02), 199, 200, 204, 209, 212, 219 (only the email of 18/05/15 at 23:02), 241 (only the email of 02/05/15 at 23:14), 244, 246, 248, 349, 354 (only the email of 18/05/15 at 23:02), 357 (only the email of 18/05/15 at 23:02) and 363. In correspondence with this Office, the HSE was not completely sure as to whether page 363 had been released to the applicant. Neither could the applicant confirm the position without being shown a copy of the relevant record. I am therefore including page 363 within the scope of my review. Having regard to the HSE's submissions, the question for me is whether these records are exempt from release under sections 29, 30 and 35 of the FOI Act or otherwise.

For completeness, I should mention that a query arose as to whether further records existed in the form of minutes of meetings concerning the applicant's circumstances. Following correspondence with the HSE and the applicant, this Office is not pursuing this matter further.

Analysis and Findings

Section 37 - Personal information

Sections 37(1) and 37(7)

The HSE did not claim this exemption. However, in view of the content of certain records, I consider it relevant and, as it is a mandatory exemption, I will deal with it first. This Office has informed the applicant of the position on section 37.

Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include: "(i) information relating to the educational, medical, psychiatric or psychological history of the individual", "(iii) information relating to the employment or employment history of the individual", "(v) information relating to the individual in a record falling within section 11(6)(a)" and "(xiv) the views or opinions of another person about the individual". Section 11(6)(a) of the FOI Act refers to personnel records of members of staff of FOI bodies.

Paragraph I of section 2 of the FOI Act excludes certain matters from the definition of "personal information", including the names of staff members of an FOI body and information relating to their office. Paragraph II also excludes certain information about service providers. However, as this Office observed in Case 090045 (Mr X and University College Cork), this exclusion "is intended, in essence, to ensure that section 28 [now section 37] will not be used to exempt the identity of a public servant while carrying out his or her official functions. The exclusions to the definition of personal information do not deprive public servants of the right to privacy generally".

Section 37(7) provides that access to a record which relates to the requester shall be refused if access to the record would, in addition to disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to people other than the requester. This is subject to certain exceptions, which I consider below.

As noted above, the applicant seeks written data which pertains to him and emails and notes which contain references to him.

Some of the information contained in the records relates solely to the applicant. Therefore section 37(2) disapplies section 37(1) in relation to this information and I do not need to consider such information further under section 37.

However, much of the information under review contains personal information relating to people other than the applicant. If it is not exempt under the FOI Act, it will be releasable to the world at large. Specifically, certain records comprise correspondence from staff/consultants which contains opinions about themselves and other individuals and the performance of their own and others' duties and/or expressions of feelings or concerns on the part of certain staff/consultants. I believe that I can take it from the candid tone and content of these records that their authors raised such matters with the HSE about themselves and other individuals on the understanding that they would remain confidential. Having regard to the particular nature of this information, I do not believe that it falls within the exclusions to personal information outlined in paragraphs I or II of section 2 of the FOI Act.

Some of these records contain information relating both to the applicant and to third parties. In theory, one could extract certain words or phrases from the records which relate solely to the applicant. However, those words and phrases appear in the context of other words and phrases which relate to the personal information of third parties. Having regard to section 18 of the FOI Act, I conclude that to provide these records with isolated words and phrases would be to provide misleading records.

In view of the above, I find that the information listed below qualifies as personal information for the purposes of sections 37(1) and 37(7) of the FOI Act and is exempt from release under those sections. This finding is subject to sections 37(2) and 37(5), which I examine below.

- Records 187, 190 & 192 (mobile telephone number)
- Record 200 (all)
- Record 204 (all)
- Record 212 (all)
- Record 241 (addressee's name, first three paragraphs and last two paragraphs)
- Record 244 (emails 05/05/15 at 14:57 and 01/05/15 at 16:34 and the names of staff referred to in the remaining email)
- Record 248 (all)
- Record 349 (emails 05/05/15 at 14:57 and 01/05/15 at 16:34 and the names of staff referred to in the remaining email)
- all mobile telephone numbers.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemptions at sections 37(1) and 37(7) do not apply. I am satisfied that none of those circumstances arise in this case. That is to say, (a) the information listed above does not relate solely to the applicant; (b) the third parties to whom the information relates have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information 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)

I am then required to consider section 37(5) as it applies to the records. Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where:

(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 request would benefit the person to whom the information relates.

In relation to the issue of the public interest, it is important to take note of the obiter 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[2011] 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.

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. I recognise that there is a public interest in the accountability of the HSE about the performance of its functions. However, on balance, in the circumstances, I find that the public interest in the privacy of its staff/consultants outweighs the general public interest in transparency around the HSE. I therefore find that section 37(5)(a) does not apply in the circumstances. It has not been argued that releasing the remaining records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances.

Accordingly, I find that the HSE is justified in withholding access to the information listed above, under sections 37(1) and (7) of the FOI Act.

Section 30 - Functions and negotiations of FOI bodies

During this review, the HSE invoked section 30(1)(b) in respect of records 187, 190, 192, 194, 199, 200, 204, 209, 219, 241, 244, 246, 248, 349, 354 and 357. In view of my finding above under section 37, I will consider this exemption in relation to records 187 - 192 (apart from the mobile telephone number), 194, 199, 209, 219, 241 (remainder), 244 (remainder), 246, 349 (remainder), 354 and 357.

Section 30(1) of the FOI Act provides, among other things:

"A head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to -

(b) have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff)...".

When a public body relies on section 30(1)(b), it should first identify the potential harm to the performance of its any of its functions relating to management and secondly consider the reasonableness of the expectation that the harm will occur. In identifying the harm, it should identify the significant adverse effect on its management functions. To satisfy the Commissioner, the public body must show that there are adequate grounds for its expectation. Establishing "significant, adverse effect" requires stronger evidence of damage than the "prejudice" standard of section 30(1)(a). Not only must the harm be reasonably expected, but it must also be expected that the harm will be of a more significant nature than that required under section 30(1)(a).

The HSE makes similar submissions under section 30(1)(b) in respect of each of the records. In essence, it submits that in circumstances where there were clearly management issues and matters requiring resolution, releasing these records could have a potential adverse effect on the performance of its staff management. It adds that this in turn could have an adverse effect on patient safety. Finally, it submits that there are no public interest factors favouring the release of these records.

Staff management is expressly stated to be a management function under section 30(1)(b). Moreover, I consider that managing patient safety is a function relating to management for the HSE. The records concern issues around staff management, hospital staffing, and ultimately patient safety. They consist of HSE correspondence about the applicant's own correspondence, in addition to HSE correspondence about wider issues of hospital resourcing and staffing. I accept that these records relate to issues for HSE management. However, it does not follow that their disclosure could significantly and adversely affect the HSE's management of its staff/consultants or patient safety. The HSE has not demonstrated to me how releasing these particular records could reasonably be expected to have a "significant, adverse effect" on a management function. Nor is it apparent to me on the face of the records that it could. I am therefore not satisfied that section 30(1)(b) applies.

Given this finding, I am not required to apply the public interest balancing test under section 30(2) of the FOI Act.

Accordingly, I find that the HSE not is justified in withholding access to these records under section 30(1)(b).

Section 35(1) - Information obtained in confidence

The HSE claims this exemption in respect of records 187, 190, 192, 199, 200, 212, 241, 244 and 349. In view of my finding above under section 37, I will consider this exemption in relation to records 187 - 192 (apart from the mobile telephone number), 199, 241 (remainder), 244 (remainder) and 349 (remainder).

Section 35 of the FOI Act provides:

"(1) Subject to this section, a head shall refuse to grant an FOI request if -

(a) the record concerned contains information given to an FOI body, in confidence and on the understanding that it would be treated as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) 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, or

(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law.

(2) Subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, an FOI body or a service provider) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider.

(3) Subject to section 38, subsection (1)(a) shall not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned."

As section 35(1) does not apply where the records fall within the terms of section 35(2), section 35(2) should be considered at the outset.

The records appear to have been prepared by staff of/service providers to the HSE in the course of performing their functions. Accordingly, section 35(1) will not apply unless releasing the records would breach a duty of confidence under an agreement or statute or otherwise by law which is owed to someone other than the HSE or its staff or service providers. During this review, the investigator drew section 35(2) to the attention of the HSE and invited its submissions on the point. However, the HSE does not address section 35(2) in its submissions. It asserts that the records contain advice and information given in confidence and refers to an equitable duty of confidence and the "potential exposure to negative reaction". Yet these records consist of correspondence between the HSE and its own staff/consultants. The HSE has not pointed me to anyone other than its staff/service providers to whom a duty of confidence is said to arise, such that section 35(1) could apply. I do not consider that the possibility of negative reaction to the disclosure of this information is a relevant factor in assessing whether section 35(2) disapplies section 35(1).

Accordingly, I find that the HSE is not justified in refusing access to these records under section 35(1) of the FOI Act.

Section 29(1) - Deliberative process

The HSE claims this exemption in respect of records 187, 190, 192, 194, 204, 209, 219, 354 and 357. In view of my finding under section 37 above, I will consider this exemption in relation to records 187 - 192 (apart from the mobile telephone number), 194, 209, 219, 354 and 357.

Section 29(1) of the FOI Act provides:

"A head may refuse to grant an FOI request -

(a) if the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and

(b) the granting of the request would, in the opinion of the head, be contrary to the public interest,

and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make".

The exemption under section 29 has two requirements:

(a) the record must contain matter relating to the deliberative process; and
(b) disclosure must be contrary to the public interest.

These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for public bodies to show to the satisfaction of the Commissioner that both requirements have been met.

A deliberative process may be described as a thinking process which informs decision-making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.

The HSE has not pointed me to any deliberative process which could be harmed by disclosing these records and it is not apparent to me from the content of these records how such a harm could occur.

Accordingly, I find that the HSE is not justified in withholding access to the records under section 29(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE's decision. I affirm the refusal of access to certain information (as listed above) under section 37 of the FOI Act. I annul the other parts of the decision and direct the release of the remaining information.

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator