Whether the HSE was justified in refusing, under section 37(1) of the FOI Act, the applicant's request for records relating to her adult son's care and treatment

8 November 2023

Background

In a request dated 15 March 2023, the applicant sought access to records of her adult son who resides in a residential service for people with an intellectual disability. The service provider is a community based voluntary provider of services for adults and children with an intellectual disability and is fully funded by the HSE.

In a decision dated 18 May 2023, the HSE refused the request under section 37 of the FOI Act on the ground that the records contain personal information relating to a third party. On 24 May 2023, the applicant sought an internal review of that decision. She said her son is an extremely vulnerable young adult with limited capacity to oversee his own affairs. She said she has concerns regarding his care and that stage 4 complaints were in progress. The HSE affirmed its refusal of the request on 12 June 2023. On 21 June 2023, 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 conducting my review, I have had regard to the correspondence between the HSE and the applicant as described above, and to the communications between this Office and both parties on the matter. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The scope of this review is concerned solely with the question of whether the HSE was justified in refusing, under section 37(1) of the Act, the applicant's request for records relating to her son.

Analysis and Findings

Section 37(1)

Section 37(1) of the Act provides for the mandatory refusal of a request where the FOI body considers that access to the records sought would involve the disclosure of personal information relating to an individual other than the requester. Section 2 of 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, including, but not limited to; (i) information relating to the educational, medical, psychiatric or psychological history of the individual, (ii) information relating to the financial affairs of the individual, and (xiv) the views or opinions of another person about the individual.

The records at issue in this case relate to the care and welfare of the applicant's son. They include behavioural support plan records, financial records, nutritional intake records, incident reports, safeguarding plan records, and activity planning records. I am satisfied that the release of the records would involve the disclosure of personal information relating to the applicant's son and that section 37(1) applies. Section 37(1) is subject to the other provisions of section 37, which I examine below.

Section 37(2)

Section 37(2) provides that section 37(1) does not apply if;

a. the information concerned relates to the requester concerned,

b. the individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester,

c. information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,

d. the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or

e. disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual,

No argument has been made that any of the circumstances outlined above, nor do I consider any to apply. I understand that in a telephone conversation with this Office's Investigator, the applicant outlined practical challenges with obtaining her son's consent to the disclosure of the records given his limited capacity to oversee his own affairs. While I understand the applicant's concerns, the fact remains that no such consent has been provided. I find, that section 37(2) does not apply.

Section 37(5)

Section 37(5) 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 request would benefit the person to whom the information relates. No argument has been made that the release of the records to the applicant would benefit the applicant's son, nor is it apparent to me how release would do so. I find that section 37(5)(b) does not apply.

Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.

Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, such as under sections 37(2)(a) and 37(8) (which I consider below), FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.

All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.

In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, 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. However, in doing so, I have also had regard to the judgment of the Supreme Court inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors[2020] IESC 57 ("the Enet case"�). In that case, 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 this case, while the applicant did not identify any specific public interest factors in favour of the release of the records at issue that might outweigh, on balance, her son's privacy rights, she indicated in her correspondence with this Office that she wants access to the records as she has concerns relating to her son who she describes as a vulnerable adult. She said her concerns are currently the subject of an Ombudsman review. While the applicant has essentially expressed a private interest for seeking access to the records, it seems to me that her reasons for seeking access to the records are reflective of a public interest in ensuring that vulnerable individuals are afforded appropriate levels of care and treatment in publicly funded facilities such as the one in which the applicant's son resides.

On the other hand, 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).

While I accept that the release of the records at issue would serve to somewhat enhance transparency around the levels of care and treatment afforded to vulnerable adults availing of the relevant residential services, it seems to me that the degree of enhancement would be quite limited. On the other hand, the records at issue are of an inherently sensitive and private nature and I must regard their release as being effectively, or at least potentially, to the world at large. In the circumstances, I do not accept that the public interest in releasing the records outweighs, on balance, the privacy rights of the applicant's son. I find, therefore, that section 37(5)(a) does not apply.

Section 37(8) and the 2016 Regulations

Section 37(8)(a) provides that, notwithstanding subsection (1), the Minister for Public Expenditure, National Development Plan Delivery, and Reform (the Minister) may provide by regulations for the grant of an FOI request where the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (the 2016 Regulations). Among other things, the 2016 Regulations provide for a right of access by a parent or guardian of an individual who has attained full age to personal information relating to the individual in certain circumstances, namely;

• at the time of the request, the individual has, or is subject to, a psychiatric condition, mental incapacity or severe physical disability, the incidence and nature of which is certified by a registered medical practitioner,and
• by reason of that condition, incapacity or disability, the individual is incapable of exercising his or her rights under the Act,and
• the FOI body considers, having regard to all the circumstances, release of the records would be in the individual's best interests.

The Minister has published guidance (the Guidance) on the application of the 2016 Regulations, in accordance with section 48(1) of the FOI Act. Section 48(3) of the FOI Act requires FOI bodies to have regard to guidelines published by the Minister in the performance of their functions. The Guidance explains that decision makers should have due regard to the best interests of the individual to whom the records relate and that use of the Guidance in relation to adults will arise only where the adult is incapable of exercising his or her rights under the Act. It provides that decision makers would have to make whatever enquiries and consultation where necessary to verify any such incapacity. The Guidance goes on to describe the factors to be considered when assessing whether a right of access exists, including;

• the nature and duration of the disability,
• whether the individual would consent to the release of the records, and
• whether release of the records would be damaging to the person in any way.

Having considered the contents of the decisions the HSE issued in response to the applicant's request and to the details of the submissions it made to this Office, it is not apparent to me that the HSE properly considered the possible applicability of the 2016 Regulations in this case. Neither the original decision nor the internal review decision made any mention of whether the 2016 regulations had been considered. During the course of the review, when seeking submissions from the HSE, the Investigator specifically referenced section 37(8), noting the potential right of access where the requester is a parent or guardian of the individual to whom the record relates and the individual is incapacitated. He asked the HSE if it had considered the section in its decision. In response, the HSE said that as a capacity assessment had not been carried out at the time of the request, and as the applicant's son did not have an advocate at that time to advise him of the request, the decision was made not to release the records until such time as the FOI request could be explained to him.

Having regard to the HSE's response, it seems to me that while the HSE was aware of the potential right of access afforded to the applicant by the 2016 Regulations, it simply chose not to consider the applicability of the Regulations in the absence of a capacity assessment or a suitable advocate. As the Guidance published by the Minister outlines, decision makers have to make whatever enquiries and consultation where necessary to determine if an individual is incapable of exercising his or her rights under the Act. In my view, the fact that a capacity assessment had not previously been carried out does not relieve the HSE of its obligation to consider the applicability of the Regulations.

I understand that a capacity assessment has since been carried out and that the applicant's son now has an advocate in place. However, it would not be appropriate for this Office to make a first instance determination on whether the applicant is entitled to access the records sought under the 2016 Regulations. Instead, I consider that the appropriate course of action to take is to annul the HSE's decision and direct it to undertake a fresh decision-making process, having due regard to section 37(8) and the provisions of the 2016 Regulations. If the applicant is unhappy with the HSE's fresh decision, the normal rights of appeal as set out in the FOI Act will apply, including, if necessary, a fresh review by this Office.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the HSE to refuse the applicant's request for records relating to her son. I direct it to undertake a fresh decision making process in respect of the request, having due regard to the provisions of the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016.

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