Whether the HSE was justified in refusing access to part of the applicant’s psychiatric file on the basis of sections 15(1)(a) and 37(1) of the FOI Act

20 November 2020

Background

In a request dated 26 July 2019, the applicant sought access to all of her psychiatric files created between 1 January 2003 and 30 June 2019.  The HSE made a decision that part granted the request and the applicant sought an internal review.  In an internal review decision dated 16 December 2019 the HSE again partially granted the request.  It said that some of the applicant’s records could not be located and so section 15(1)(a) of the FOI Act was applied.  In line with the HSE’s description, these records are referred to as “Volume One”. 

The HSE attempted to reconstruct these records as far as possible by printing off copies of any records held electronically.  These records consist of documents generated by the HSE and were described as “Copies of correspondence from […] Volume one”.  Some redactions were made to these records on the basis of section 37 of the FOI Act (personal information). 

A final set of records described as “Volume Two” was considered for release and redactions were made to a number of these records, also on the basis of section 37.  On 6 January 2020, the applicant applied to this Office for a review of the HSE’s decision.

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 submissions made by the applicant 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.

Scope of Review

This review is concerned with whether the HSE was justified in refusing access to parts of Volume one and parts of Volume two of the applicant’s psychiatric records on the basis of sections 15(1)(a) and 37(1) of the FOI Act. 

Analysis and Findings

Section 15(1)(a)

As outlined above, the HSE applied section 15(1)(a) of the FOI Act to the hard copy Volume One of the applicant’s files on the basis that the records could not be found after all reasonable searches had been carried out.  The HSE, in submissions to this Office, detailed the searches that it had undertaken.  However, after speaking with the applicant, the investigator in this case put further questions to the HSE on the possible whereabouts of the applicant’s file and following some additional searches, certain additional records were located. 

The role of this Office is to review decisions made by public bodies. It is not to effectively act as a first instance decision maker.  The additional records identified by the HSE have not been through the formal FOI process and so there is no decision on them for this Office to review at this time.  In the circumstances, I consider that the most appropriate course of action to take at this stage is to annul this part of the HSE’s decision and direct it to carry out a decision making process on the additional hard copy Volume One records recently located.  The effect of this is that the HSE will make a new, first instance decision in accordance with the provisions of the FOI Act.  Should the applicant be dissatisfied with the HSE’s processing of the request, she is entitled to apply to this Office for a review in due course.

Section 37

The HSE provided a schedule of records that it had identified as coming within the scope of the applicant’s request, including documents that it had found in soft copy form relating to Volume One.  Section 37(1) was applied to parts of 35 pages of those records and the rest of the records were released to the applicant.

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.  Section 37(1) does not apply where the information involved relates to the requester (section 37(2)(a) refers).  However, section 37(7) provides that, notwithstanding section 37(2)(a), 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. This is commonly known as joint personal information.

The FOI Act defines 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 definition also details fourteen specific categories of information that is personal information without prejudice to the generality of the foregoing definition.  It includes

• ‘(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’;
• ‘(viii) information relating to the religion, age, racial or ethnic origin, sexual orientation or civil status (within the meaning of the section 2(1) of the Civil Registration Act 2004) of, any disability of, or the political opinions or the religious or philosophical beliefs of, the individual’;
• ‘(xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual’ and
• ‘(xiv) the views or opinions of another person about the individual.’

Having examined the records, I am satisfied that the information withheld by the HSE is personal information relating to individuals other than the requester and/or is joint personal information relating to the requester and another individual.  The redacted information includes the names, postal and electronic addresses and telephone numbers of individuals other than the applicant; and private information about individuals other than the applicant. I find that sections 37(1) and 37(7) apply to all of this information. 

Section 37(2)

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 in section 37(2) apply to this information.  That is to say, (a) it does not relate solely to the applicant; (b) the third parties 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)

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the request would benefit the person to whom the information relates.

It has not been argued that releasing the records would benefit the third parties to whom the information relates and I have no reason to believe that it would do so. I therefore find that section 37(5)(b) does not apply in the circumstances. 

On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had regard to the 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] 1 IR 729, [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.

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 57. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. Baker J. said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

Both 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). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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. It is also relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large given that the Act places no constraints on the uses to which the information contained in those records may be put.

The majority of the identified records in this case were released to the applicant and a relatively small amount of personal information was redacted.  As set out above, the information redacted from the remaining records are the names, contact details and other private information of individuals other than the applicant. I understand that the applicant would like to see the entire file held by the HSE with no redactions.  I also accept that there is a public interest in individuals being aware of the information that public bodies hold on them and how they use that information. Further, there is a public interest in individuals being informed as to the basis on which decisions are taken by the HSE regarding their care and treatment.

It seems to me that the HSE sought to strike a balance in this case by releasing as much information as possible relating to the applicant while simultaneously seeking to protect the privacy rights of the third parties concerned. Having carefully considered this matter, and given the strong public interest in protecting the right to privacy, I find no relevant public interest in granting access to the remaining withheld information that, on balance, outweighs the right to privacy of the individuals to whom the information in question relates. I find, therefore, that section 37(5)(a) does not apply.

For the reasons set out above, I find that the HSE was justified in refusing access to this information under sections 37(1) and 37(7) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the HSE to refuse access to the hard copy Volume one records under section 15(1)(a).  I direct it to conduct a fresh decision-making process in respect of this aspect of the applicant’s request in accordance with the provisions of the FOI Act. 

I uphold the HSE’s decision to partially refuse access to 35 pages of the scheduled records on the basis of sections 37(1) and 37(7) as they contain the personal information of individuals other than the applicant. 

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.

 

Deirdre McGoldrick

Senior Investigator