Whether the HSE was justified in refusing access to certain information in particular reports relating to the applicant-�s mother

14 March 2023

Background

The applicant-�s FOI request to the HSE of 11 February 2022 sought access to -�all reports compiled by Dr [X-�s] team at Psychiatry of Later Life (POLL) relating to [his] mother, including all Social Worker reports-�. He included a letter addressed to Dr X, signed by his mother and witnessed by a third party, which consented to the applicant being kept informed of his mother-�s treatment plan and -�to have access to any reports compiled by the team -� since the beginning of [her] time under [Dr X-�s] care.-� In addition, the applicant provided a letter addressed to his mother-�s G.P., again signed by his mother and witnessed by the third party, consenting to the applicant having ongoing access to her medical reports and medical information.

The HSE-�s decision of 4 March 2022 refused the request under sections 35(1)(a) (confidential information) and 37(3) (prejudicial to well-being of requester) of the FOI Act.

The applicant sought an internal review on 28 March 2022. In particular, he said that he was -�not interested in [his] mother-�s collateral-� (i.e. information provided by his mother). He said that he is -�only interested-� in obtaining what he described as -�the fabricated collateral which [he believed] was reported to POLL from other sources-�.

The HSE-�s internal review decision of 6 May 2022 affirmed its refusal of the applicant-�s request.

On 18 October 2022, the applicant applied to this Office for a review of the HSE-�s decision. He said that his mother was now in long term residential care. He reiterated that he is -�not interested in any collateral that [his] mother shared with POLL-� and is -�only interested-� in obtaining what he described as -�fabricated collateral-� which he believed was reported to POLL -�from other sources-�.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, to correspondence between this Office, the HSE and the applicant, and to the contents of the records the subject of the HSE-�s decisions. I have also had regard to the provisions of the FOI Act.

Scope of Review

The HSE-�s decision making process appears to have considered the entirety of the applicant-�s mother-�s file, a copy of which it provided to this Office. However, this review can only consider the potential disclosure of records falling within the scope of the original FOI request as subsequently narrowed.

The original request sought access to reports compiled by POLL and by social workers, the scope of which the applicant subsequently narrowed to -�collateral -� reported to POLL-�. I explained to the applicant that, on the basis he did not seek information which he had provided himself, the scope of this review is confined to the sole issue of whether the HSE-�s refusal of information received from third parties other than his mother, as contained in -�all reports compiled by Dr [X-�s] team at Psychiatry of Later Life (POLL) -� including all Social Worker reports-�, was justified under the provisions of the FOI Act. I have examined all records amongst those sent to this Office, which might be considered as reports compiled by POLL and by social workers. I have, in turn, identified and considered any information therein that appears to be -�collateral -� reported to POLL-� by any party (including public servants) other than the applicant and his mother.

I also told the applicant that the extent of such details on the file sent to this Office is limited. He expresses surprise at this. Furthermore, in the context of section 37(2)(a), the applicant refers to an individual whom he says made reports directly to POLL and through her employer (a home care provider). He says that these reports should be on the file and in turn made available to him.

Any reports that may have been made by a home care provider or its employee fall outside the scope of the applicant-�s request for reports compiled by POLL and by social workers. While any reports compiled by POLL or by social workers containing -�collateral -� reported-� by such parties would be covered by the request and in turn the review, I note no such details on the file. I should say that it is not open to me to review the adequacy of an FOI body-�s searches for records where the matter has not been raised at internal review stage. It is open to the applicant to raise this with the HSE either outside of FOI or through a fresh FOI request.

Preliminary Matters

The applicant expresses dissatisfaction with POLL-�s treatment of his mother, and says that he has been unable to obtain transparency and accountability on the matter. This appears to be an observation rather than an explicit argument that such issues are relevant to my decision. However, it is nonetheless useful to clarify that section 13(4) of the FOI Act requires me to disregard any reasons that the applicant has or may have for making his FOI request. Furthermore, this review does not extend to examining, making findings on or taking account of how the HSE performs its functions generally. I cannot take account of the applicant-�s views on these matters.

It is useful to set out the Commissioner-�s approach to section 18 of the FOI Act, given the applicant-�s suggestion that information could be redacted to protect the identity of third parties. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed.

Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). Furthermore, the Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remainder of such records for the purpose of granting access to those particular sentences or paragraphs.

Section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. For this reason, the descriptions I can give of the records and of the reasons for certain parts of my decision are somewhat limited.

Finally, release of records under FOI is generally understood to have the same effect as publishing them 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.

Analysis and Findings

Although the HSE-�s decisions relied on sections 35(1)(a) and 37(3) of the FOI Act, in my view it is appropriate to consider the mandatory section 37(1) (personal information).

Section 37(1) -� personal information

Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information. For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including (xiv) the views or opinions of any other person about the individual. Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.

The applicant says he is entitled to information relating to him, including any professional observations made about him and his family, and that names can be redacted to protect the identities of third parties.  

Section 25(3) requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions. I am therefore required to limit the level of detail I can give in describing the relevant information. However, having examined the material, I am satisfied that it is of a type that meets the definitions of personal information, and which is also captured by some of the examples of what comprises personal information about identifiable individuals.

As explained already, my review cannot consider details that fall outside of the applicant-�s FOI request as narrowed. I am also satisfied that even without names, individuals would be identifiable from the context and content of the remaining information. Furthermore, some of the personal information at issue is about individuals other than the applicant (and/or his mother). The remainder comprises personal information relating to the applicant and/or his mother which is inextricably linked with that of other individuals (joint personal information). Both the third party and joint personal information includes professional observations. However, section 37(7) provides that, notwithstanding section 37(2)(a) (see below), access to a record shall be refused where access to it 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.

I find that the relevant details are exempt under section 37(1) of the FOI Act. This is subject to the consideration of sections 37(2) and (5), however. I also note that Regulations made under the FOI Act provide that information relating to persons who are incapable of exercising their rights under the FOI Act may in certain circumstances be made available tointer aliathe person-�s guardian. However, the applicant is not his mother-�s guardian and, in any event, the relevant legislation does not entitle a guardian to access to the personal information of other individuals.  

Section 37(2) - exceptions to section 37(1)

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. Section 37(2)(a) provides for the grant of access to personal information relating to the requester. I am satisfied that no information falls for release further to this provision of the FOI Act.

The applicant has provided his mother-�s consent to the release to him of her personal information. However, this does not entitle him to personal information about other individuals. While I also note the applicant-�s offer to request consents from the home care provider company and its employee regarding the information he says they submitted, as explained earlier I see no such details amongst the records sent to this Office. It is open to the applicant to seek such consents and provide them to the HSE in the context of any further enquiries or FOI requests he may wish to make.

I have already outlined the provisions of section 37(7). While some of the withheld details comprise joint personal information, as outlined above, I do not consider that personal information relating to the applicant and/or his mother can be separated from that of other individuals. The details also contain personal information relating entirely to identifiable individuals other than the applicant and/or his mother. I am satisfied that the remaining circumstances set out in section 37(2) do not arise.

Section 37(5)(a) - the public interest

In considering section 37(5), I consider that only section 37(5)(a) is relevant in this case. This section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.

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 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 5. 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. She 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.

The applicant says that he was informed by Dr X that the way to seek information about his mother was to make an FOI request. He says that, other than himself and his mother, information was (or may have been) gathered from certain other parties whom have fabricated information and accusations about him. He says that others can verify this contention.

The applicant says that the HSE-�s approach to confidentiality is selective. He says that the only information being treated confidentially is that given by certain other parties, which he says is fabricated and not supported by evidence. He says that the information he provided was not treated confidentially. He says that others saw this information, and information provided by his mother, which enabled those parties to undermine and discredit him.

The applicant says that his own concerns have been disregarded and that he was not asked for evidence regarding matters that he reported. He says that he is entitled to his good name and should have a right of reply to the information concerned. He says that he is a victim of others-� actions, and that his mother-�s treatment has also been affected. He says that he was his mother-�s acting carer and did not have access to her medical reports, even though she had consented to the disclosure to him of her treatment plan and medical reports. He outlines why he is dissatisfied with the POLL service. He says that release of the records would support transparency and enable the HSE and others to be held accountable for his mother-�s treatment.

The applicant-�s private interests in obtaining the information at issue do not amount to public interests for the purpose of the FOI Act. I accept that the disclosure of the details concerned would give him some insight into various matters relating to his mother-�s care. However, this does not mean that there should be no protection of privacy rights of other individuals. I do not believe it is appropriate for me to direct the release in the public interest of third party personal information, effectively to the world at large, on the basis that the applicant is not happy with various actions of the HSE or of particular individuals. As explained earlier, this Office has no role in examining or making findings on those actions or in examining the applicant-�s contention that details provided by certain third parties were fabricated.

I am satisfied that placing the withheld details in the public domain would significantly breach the rights to privacy of identifiable individuals. Having regard to the nature of the information at issue, I am aware of no public interest factors in favour of the release of the details that, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

In the circumstances, there is no need for me to consider the exemptions relied on by the HSE in its decisions. I will say, however, that section 37(3) is concerned with access to a requester-�s own medical, psychiatric or social work records, rather than with a requester who is seeking access to records relating primarily to another party (the applicant-�s mother in this case). I also note that the HSE has not elaborated on its decision to apply this provision other than to refer to matters irrelevant to section 37(3), such as the confidentiality of the records and whether their disclosure to the applicant would be in his mother-�s best interests.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE-�s decision, on the basis that section 37(1) of the FOI Act applies to those details covered by the request.

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.

Anne Lyons
Investigator