Whether the HSE was justified in refusing access to certain records relating to the applicant, in full or in part, under sections 15(1)(a), 30(1), 31(1)(a) and 37(1) of the FOI Act

22 February 2023

Background

In a request dated 23 February 2022, the applicant, a HSE employee, sought access to all records relating to her from 1999 to the present held within nine different specified HSE buildings. Due to the multi-part nature of the request, the HSE divided it up and the various elements were dealt with by the relevant sections of the HSE.  While several separate decision letters issued to the applicant, the scope of this review is limited to two such decision letters.

In relation to the records held by the CHO Area 8 HR Department, a late decision part-granting the request was issued on dated 25 April 2022. It identified 99 relevant records (223 pages) of which one record was refused under section 31(1)(a) and two were refused under sections 30(1)(a) and 30(1)(c). The remaining records were released to the applicant, with redactions made to eight of them under section 37(1). Following a request for internal review, the HSE affirmed this decision on 26 July 2022.

On 2 June 2022, a late decision was issued part-granting access to the records held by a named HSE Health Centre and Primary Care Centre. Five separate schedules were provided in relation to these records which amounted to approximately 1,700 pages in total. One record was refused under sections 30(1)(a) and 30(1)(c). The remaining records were released to the applicant, with redactions made to five of them under section 37(1). The decision letter also said that in relation to accessing the digital recordings of certain meetings, the applicant was welcome to attend at the Health Centre at a suitable time to listen to the recordings. The applicant sought an internal review of this decision, stating that she did not believe that all records had been released to her. On 28 July 2022, the HSE varied its earlier decision. It said that some of the records should have been refused as they had previously been provided to the applicant further to earlier FOI requests. It also noted an anomaly in the numbering on one of the schedules. However, it made no substantive changes to the records refused in full or in part, and said that it was satisfied that adequate searches had been carried out to identify all relevant records.

On 29 July 2022, the applicant applied to this Office for a review of the HSE-�s decision.

In the course of the review, the HSE revised its position on one record refused under section 31(1)(a), accepting that it was no longer legally privileged, and it said it would release that record to the applicant. It also revised its position on one of the records refused under section 30, and said that it was subject to litigation privilege. Furthermore, while it had refused certain records under sections 30(1)(a) and 30(1)(c), in its submissions it said that section 30(1)(b) also applied. The applicant was informed of these changes in position and invited to comment, which she did.

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 HSE and by the applicant as well as to the communications between the parties as set out above, and their communications with this Office. 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 confined to the HSE-�s decisions on the records held by the CHO Area 8 HR Department and in the Health Centre and Primary Care Centre. Records sought by the applicant in the other locations specified in her FOI request are outside the scope of this review.

The applicant is not satisfied with the refusal to release certain records or parts of records, nor is she satisfied that all relevant records were located and considered for release. Accordingly, this review is concerned with whether the HSE was justified in its decision to withhold certain records, in whole or in part, under sections 30(1), 31(1)(a) and 37(1) of the FOI Act, and whether it was justified in refusing to release any additional records under section 15(1)(a) of the FOI Act on the ground that no further relevant records exist or can be found.

Preliminary Matters

Before I address the substantive issues arising in this case, I wish to make a few preliminary comments. Firstly, it is important to note that while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. I am therefore required to limit the level of detail I can give in describing the withheld records. Equally, I must limit my description of the HSE-�s submissions regarding why the records are exempt. 

Secondly, in her communications with this Office, the applicant explained some of the background as to why she was seeking the records at issue. Section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.

Thirdly, the applicant also raised concerns about the decision maker on one part of the FOI request, stating that she believed there to be a conflict of interest. This Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Fourthly, the applicant maintained that she is entitled to access all records that contain any reference to her. The FOI Act provides for members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information held by public bodies. The right of access is not absolute, however, and section 11(7) of the FOI Act provides that the right of access does not apply to an exempt record, including when the exemption is mandatory.

Finally, a review by this Office is considered to be -�de novo-�, which means that it is based on the circumstances and the law as they pertain at the time of the decision. The Courts have endorsed this approach.

Analysis and Findings

Section 31(1)(a) -� Legal professional privilege

The HSE-�s position is that record 98 (pages 213 -� 215) in the CHO Area 8 HR records is exempt from release under section 31(1)(a), on the basis that the record is subject to litigation privilege.

Section 31(1)(a) provides for the mandatory refusal of a request if the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege. The exemption does not require a consideration of the public interest for or against release.

Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

I have carefully examined record 98, which contains a series of emails within the HSE (the client) and with its legal advisor, referring to legal proceedings taken against the HSE. I accept that these communications were confidential and that their dominant purpose was the preparation for litigation that was initially contemplated, and then pending. The HSE confirmed that the legal proceedings referred to are ongoing.

I am satisfied that record 98 attracts litigation privilege and that the HSE was therefore justified in refusing access to it under section 31(1)(a) of the FOI Act.

Section 37 -� Personal information

Section 37(1)

The HSE made redactions under section 37(1) of the FOI Act to eight records held by the CHO Area 8 HR Department and five records held by the Health Centre and Primary Care Centre, two of which were duplicates of the HR records.

Omitting the duplicates, the records at issue are records 20, 29, 31, 46, 54, 59, 80 and 93 in the CHO Area 8 HR Department records and the records numbered as pages 65-67, 283-285, and 288-293 listed in the schedule titled -�[Named person] file on [applicant]-�.

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers).

Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an 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, constitute personal information.

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers).

Having examined each of the redactions in the records at issue, I find that the disclosure of the following information from the CHO Area 8 HR records would not involve the disclosure of personal information of individuals other than the requester:

• Record 29, the redacted information in the box at the top of page 61,
• Record 31, the redacted words after -�the above named person worked for-� in the main body of the letter.

Apart from the specific information I have identified above, I am satisfied that the remaining information that has been redacted from the records constitutes personal information relating to individuals other than the applicant and I find that section 37(1) applies to all such information. 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)

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) applies in this case.

Section 37(5)

Section 37(5) provides that a request that would fall to be refused under subsection (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 person to whom the information relates. In the particular circumstances of this case, 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 person to whom the information relates.

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to 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. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, 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 relation to the issue of the public interest, it is also important to have 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] IESC 26 ("the Rotunda case"). It is noted that a true public interest should be distinguished from a private interest.

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.

The HSE said that it considered the balance between the public interest in openness, transparency and accountability and the right to access records under the FOI Act on one hand, and the public interest in protecting the right to privacy of third parties. It said that it found, on balance, no public interest in granting access to the information at issue which outweighed the public interest in protecting the right of privacy of the individuals to whom the information relates.

As noted previously, I am required to disregard the applicant-�s reasons for making the FOI request except insofar as it can be construed as a public interest. The applicant explained that she was seeking the records in the context of difficulties with her employer. Given the sensitive nature of the issues involved, I will not repeat them in any more detail here but I confirm that I have had regard to them.

I have carefully considered the applicant-�s arguments and have examined the records at issue. While I appreciate the reason why she is seeking access to the records, I am bound to treat this as a private, rather than a public, interest.

Having carefully considered the matter, I have not been able to identify any sufficiently specific, cogent and fact-based reason for finding that the public interest in granting access to the redacted information in the records concerned outweighs the right to privacy of the individuals to whom the information relates. Accordingly, I find that the section 37(5)(a) does not apply and that the HSE was justified in redacting, under section 37(1) of the FOI Act, the information to which I have found section 37(1) to apply.

Section 30 -� Functions and negotiations of FOI bodies

Three records were originally refused for release under section 30(1): records 95 and 98 in the CHO Area 8 HR records, and the record at pages 91-92 in the -�Personnel File held in Health Centre [named location]-� from the Health Centre and Primary Care Centre records. As I have already found record 98 to be exempt from release under section 31(1)(a) there is no need to consider it further. The remaining two records are duplicates of each other and therefore there is only one remaining record to be examined under section 30. This record is an internal note dated 30 July 2021.

In its original decision, the HSE said that sections 30(1)(a) and 30(1)(c) applied to this record; however, in its submissions to this Office it said that section 30(1)(b) also applied. The applicant was advised of this and given an opportunity to comment. It seems to me that section 30(1)(b) is the most relevant sub-section and I will examine it first.

Section 30(1)(b) of the Act provides for the refusal of a request where the FOI body considers that access to the record concerned could reasonably be expected to 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). Where an FOI body relies on section 30(1)(b), it should identify the function relating to management concerned and it should identify the significant adverse effect on the performance of that function which is envisaged. The FOI body must then make an assessment of the degree of significance attaching to the adverse effects claimed. Establishing -�significant adverse effect-� requires stronger evidence of damage than the -�prejudice-� standard in section 30(1)(a) and other sections of the Act. Having identified the significant adverse effect envisaged, the FOI body should then explain how release of the particular information in the records could cause the harm and consider the reasonableness of its expectation that the harm will occur.

A claim for exemption under section 30(1)(b) must be made on its merits and in light of the contents of the particular record concerned and the relevant facts and circumstances of the case. In examining the merits of an FOI body's view that the harm identified could reasonably be expected by the release of records, the Information Commissioner does not have to be satisfied that such an outcome will definitely occur. The test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable. It is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations.

As noted previously, having regard to section 25(3), I am constrained in the level of detail I can give when describing the record at issue or some of the HSE-�s arguments as to why it considers it to be exempt. The descriptions I will give of the HSE-�s arguments are therefore at a high level but I confirm that I have had regard to the full detail provided. In summary, the HSE said that release of the record would damage its ability to manage staff including engaging with colleagues from other parts of the HSE. Having regard to the HSE-�s arguments and the contents of the record itself, I am satisfied that its release could reasonably be expected to have a significant adverse effect on a function relating to management, specifically staff management. In reaching this conclusion, I accept that in circumstances such as the one reflected in the record at issue, involving complex and long-running disputes, that managers must be able to engage in discussions with relevant colleagues in pursuit of a resolution, and that release of the record in question could reasonably be expected to impinge on this and to cause significant damage to the HSE-�s ability to manage complex staff situations in the future. I am satisfied that section 30(1)(b) applies to the record in question.

However, this is not the end of the matter as section 30(2) provides that section 30(1)(b) does not apply where the public interest would, on balance, be better served by granting access than by refusing to grant the request.

The HSE said that in considering the public interest, it took into account that there is a public interest in accountability and objectivity in decision-making processes. It also said there may be a public interest, favouring disclosure, of particular matter to a particular applicant in a particular case, as opposed to disclosure to any person. In terms of public interest factors which favour refusing the records, the HSE cited the need to protect the efficient and effective management of the HSE of its staff.

As noted in the examination of the public interest under section 37, I consider the applicant-�s explanation and reason for seeking the records in this case to represent a private rather than a public interest. Having carefully considered the matter, and having regard to the significant adverse effect that the HSE reasonably expects to occur if the record was released, I am satisfied that public interest would, on balance, be better served by refusing than by releasing the record.

Section 15(1)(a) -� Adequacy of search

It is the applicant-�s position that further records must exist and should have been released to her. It is the HSE-�s position that all relevant records have been identified and that every effort has been made to source all records relating to the applicant held in both hard and soft copy. This is effectively a refusal to grant access to any further records under section 15(1)(a) of the FOI Act.

Section 15(1)(a) provides that an FOI body may refuse to grant a request where the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner-�s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. 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 his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

The evidence in -�search-� cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

The HSE provided this Office with a description of the searches it undertook to locate records relevant to the applicant-�s request, details of which were provided to the applicant during the review. Therefore, while I do not propose to repeat the details in full here, I can confirm that I have had regard to those details in full. In summary, the HSE said that it searched emails and electronic records using the applicant-�s name in a number of different specified formats. It said that email records were retrieved from Outlook pre and post the cyber-attack (that took place in May 2021). It said that its understanding was that the records were complete however it said that there was a possibility that the cyber-attack may have impacted the retrieval of archived files. It described searches of hard copy records that were carried out, including searches of locked cabinets and offices in the event that a stray record or loose sheet were not included in the applicant-�s hard copy file. It also listed the HSE staff members who were contacted to undertake searches of their respective offices. In relation to the records held in the Health Centre and Primary Care Centre, the HSE said that it also contacted five other specified offices outside these two buildings to ensure that all relevant records were identified. The HSE said that no files had been destroyed.

The applicant provided this Office with specific details of additional records that she believed should have been released to her. These details were put to the HSE for comment.  The HSE provided a response in relation to each of these categories of records, either stating that the relevant records had already been released or explaining why it was satisfied that such a record did not exist. The details of this response were also shared with the applicant. In many cases, the HSE provided specific references to the various schedules identifying where exactly relevant records had already been released. In one instance, it noted that records held by the IT Department had previously been released to the applicant in March 2022 further to a separate FOI request.

The applicant was invited to provide any final comments in relation to the HSE-�s submissions as summarised above. The applicant reiterated that she did not believe all relevant records had been released to her, she referred again to difficulties with one of the original decision-makers on her request and the broader context in which she was making the request. She also referred to various records/categories of records which she believed to exist but that had not been released to her, the majority of which were already specifically addressed by the HSE in its submissions and communicated to the applicant.

It is important to note that the FOI Act is not concerned with access to records that a requester believes ought to exist. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects an FOI body's explanation of why a record does not exist. The test in section 15(1)(a) is whether searches have been reasonable. In this case, having regard to the volume of records already released, the description of extensive searches undertaken and its explanation as to why it considers that additional records do not exist, I am satisfied that the HSE has taken reasonable steps to locate records relevant to the applicant-�s request. Accordingly, I find that the HSE was justified in its effective refusal to release any further relevant records to her 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 vary the HSE-�s decision. I find that it was justified in refusing access, under sections 31(1)(a) and 30(1)(b) to the records at issue. I find that it was justified in refusing access, under section 15(1)(a), to further records relevant to the applicant-�s request. I find that it was justified in redacting, under section 37(1) of the FOI Act, certain information from the records at issue, apart from the information to which I have found section 37(1) not to apply, as described in the main body of the decision above. I direct that this information be released to 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 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.

Emer Butler
Investigator