Ms X and Health Service Executive [2024] IEIC 143037 (17 June 2024)

Background
Scope of Review
Preliminary Matters
Analysis and Findings
Decision
Right of Appeal

Whether the HSE was justified in refusing access to transcripts of witness statements and other materials provided during a Systems Analysis Review (SAR) carried out on behalf of a specified hospital under sections 30 and 37 of the FOI Act

17 June 2024

Background

The records sought by the applicant in this case relate to a review of her and her deceased child's medical care, arising from very tragic events that I do not intend to set out here in order to protect the privacy of the people involved. In a request dated 8 June 2023, the applicant sought access to records relating to a Systems Analysis Review (SAR) conducted into the care of herself and her child at a specified hospital. Specifically, she sought access to transcripts of witness statements provided to the review panel and supporting materials gathered during the review process, other than her hospital chart to which she already had access. In a decision dated 9 August 2023, the HSE part-granted the request. It identified eight records, of which it released only one (a transcript of the applicant's witness statement - record 5) in part. It refused access to the remainder of the records on the basis of sections 30 and 37 of the FOI Act.

On 16 August 2023, the applicant sought an internal review of the HSE's decision. The HSE affirmed its original decision on 1 September 2023. On 27 September 2023, the applicant applied to this Office for a review of the HSE's decision. During the course of the review, both the HSE and the applicant made submissions in support of their views on the records concerned.

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 by the HSE to this Office. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

In response to a query from this Office regarding the second part of the applicant's request which sought access to "[a]ll supporting materials gathered during the review process", the HSE confirmed that various supporting materials had been provided to the review panel as part of the SAR process, including the eight records identified and listed on the records schedule. The HSE also stated that a terms of reference document was created, which has already been provided to the applicant as Appendix 1 to the final report. It further stated that a number of clinical guidance records and policies and procedure documents were provided to the review team, which had not been considered for release. The HSE also indicated that it was willing to release these records in full to the applicant. If it has not already done so, I would expect it to make arrangements to release these records now.

On the records schedule provided by the HSE, record 3 is described as a duplicate of record 1. Having examined the records in question, I am satisfied that this is the case. Accordingly, the HSE's decision in relation to record 3 will not form part of this review.

Having regard to the above, this review is concerned solely with whether the HSE was justified in its decision to refuse to grant access to records 1, 2, 4 and 6 to 8 in full and record 5 in part on the basis of sections 30(1)(a) and (b) and 37(1) of the FOI Act.

Preliminary Matters

Discovery vs release under FOI

In her request for an internal review and correspondence with this Office, the applicant referred to a recent court case (O'Keefe & Anor v Governor and Guardians of The Hospital for the Relief of The Poor Lying-In Women Dublin [2023] IECA 78) where a family was granted access to similar records to those sought in this case. While the applicant was of the view that this judgment supported her case for the release of the records at issue, I note that the case in question concerned a discovery order for the records sought by the family in question, who had taken proceedings against the relevant public body.

As notified to the applicant during this review, the courts have found that the release of records under FOI is very different to the discovery of records in a court case. In particular, they have found that release of records under FOI is effectively release to the world at large, as the FOI Act imposes no restrictions on the use of records released in this way. On the other hand, records which are subject to a discovery order are subject to an implied or express undertaking that they will only be used by the party receiving them for the purpose of the particular court case in which they are discovered. Therefore, the question of whether records would be discoverable in court proceedings does not have any bearing on whether a public body is justified in refusing access to the same records under FOI.

This Office's role

In her correspondence with the HSE and this Office, the applicant has essentially stated that she received inadequate care at the hospital, which resulted in her child's death. While I have great sympathy for her, it is important to note, as a preliminary matter, that 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.

Analysis and Findings

By way of background, a SAR is a type of review commissioned by the HSE following an adverse incident which seeks to establish the facts around the incident, and identify any potential deficits in care and/or contributory factors that can be addressed to improve care for future patients. The records in question in this case comprise transcripts of interviews with relevant hospital staff members (records 1, 2, 4 and 8), a transcript of the applicant's interview (record 5), an attendance list (record 6) and a staff member's witness statement (record 7) provided during the SAR in question. Parts of record 5 were refused on the basis of section 37. The remaining records were refused in full on the basis of sections 30 and 37.

In the circumstances of this case, I consider section 37 to be of most relevance, so I will consider the HSE's decision to refuse access to all of the records at issue on this basis in the first instance.

Section 37

Section 37(1) and 37(7)

Section 37 of the FOI Act is a mandatory exemption, which provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record would involve the disclosure of personal information, including personal information relating to a deceased individual. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester.

Section 37(1) does not apply where the information involved relates solely to the requester (subsection (2)(a) refers). However, section 37(7) provides that, notwithstanding subsection (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 (commonly known as joint personal information). Essentially, this means that while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, if that personal information is inextricably linked to personal information relating to parties other than the applicant, then section 37(1) applies. It is also important to note that the fact that a requester may be aware of the nature of the information or may have even provided some or all of the information to the body in question does not mean that it cannot be regarded as personal information relating to a third party for the purposes of the FOI Act.

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, including (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) (see below), (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.

Section 11(6)(a) is defined as:

"a personnel record, that is to say, a record relating wholly or mainly to one or more of the following, that is to say, the competence or ability of the individual in his or her capacity as a member of the staff of an FOI body or his or her employment or employment history or an evaluation of the performance of his or her functions generally or a particular such function as such member".

Certain information is excluded from the definition of personal information. Paragraph (I) in section 2 of the Act, provides that it does not include:

"in a case where the individual holds or held-�

(A) office as a director of,

(B) a position as a member of the staff of, or

(C) any other office, or any other position, remunerated from public funds in,

an FOI body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied 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 the functions aforesaid".

In its original and internal review decisions, the HSE stated that the staff members concerned participated in the SAR process on a voluntary basis. It said that the individuals in question had participated in a frank and open manner, with an expectation of a degree of confidentiality. The HSE also stated that the transcripts concerned were based on the Stenographer's notes which were written "word for word" and reflected "mannerisms of each individual's speech". It said that such records were very personal in nature to the individuals concerned. Among other things, the HSE also stated that the HSE Incident Management Framework 2020, which sets out the procedures to be followed for such reviews, requires that final SAR reports are pseudonymised. In this regard, I note that the Framework states that "any identifying characteristics of data [should be replaced] with a pseudonym, or-� value which does not allow the data subject to be directly identified".

While some of the HSE's comments were made in relation to section 30, I also consider them relevant to my consideration of section 37.

As noted above, the records concerned have their background in a review following the tragic death of the applicant's child. They comprise transcripts of interviews with the applicant and staff members of the hospital, and a witness statement, setting out a description of relevant events, and a list of individuals who attended the interviews in question.

Having carefully considered the content and context of the creation of the records at issue, I am satisfied that the transcripts and witness statement comprise the recollections and opinions of identifiable employees of the relevant hospital in relation to the matters in question. I accept that the information was given on a voluntary basis, in an effort to identify what happened, how and why it happened and what could be done to reduce the risk of recurrence and make services safer for patients. There is no dispute that the records in question relate to the personal information of the applicant and/or her child. However, I must consider whether they also contain the personal information of the staff members in question.

As noted above, paragraph (I) excludes certain information relating to staff members of public bodies from the definition of personal information i.e. the name of the individual, and the office that he or she holds, the functions of that office, the terms on which it is held, and anything recorded by the individual for the purposes of the performance of his or her functions. However, the exclusion at Paragraph (I) does not exclude all information relating to staff members. The exclusion is intended, essentially, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held, or any records created by the staff member while carrying out his or her official functions, or information relating to the terms, conditions and functions of positions. It is important to note that the exclusion does not deprive public servants of the right to privacy generally.

In the circumstances of this case, where hospital staff participated in the SAR process on a voluntary basis, with an expectation of a certain degree of confidentiality, on the understanding that the final report would be pseudonymised, it seems to me that such participation could not be said to have been in the course of and for the purpose of the performance of their functions. In my view, the records relate to the voluntary contributions made by staff to a review of a serious incident in the context of identifying areas where improvement could be made to ensure the safety of patients in future, rather than for the purposes of performing their functions in relation to providing care for patients in a hospital setting. In the circumstances, I find that paragraph (I) does not apply and that the information at issue is personal information.

Having regard to the above, I am satisfied that the information in the records falls within categories (i), (iii), (v), (xii) and (xiv) in the definition of personal information at section 2 of the Act; that is it relates to the educational and/or employment history and personnel records of the staff members, the medical history of the applicant, (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.

I note that the Hospital has released the transcript of the applicant's interview in part. However, I am satisfied that the remaining information contained in the records relating to the applicant, her child and the staff members concerned, is intertwined in such a way that it would not be possible to release any further information relating to the applicant without also revealing the personal information of other third party individuals.

Accordingly, while the third parties concerned were staff members of the hospital in question, in the circumstances of this case, I am satisfied that the release of the remaining information would, in all instances, involve the disclosure of their personal information. Accordingly, I find that section 37(1) applies. However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section

Sections 37(2) and 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. I see no basis for finding that the grant of the request would benefit the individuals to whom the information relates and I am satisfied that section 37(5)(b) does not apply in this case.

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. The applicant's arguments in favour of the release of the records at issue centre around the tragic death of her child and related allegations of negligence. While I appreciate that the applicant wishes to access the records in full and I sympathise with her on the tragic loss of her child, section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives 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 insofar 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, 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 in The 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.

It seems to me that the majority of the applicant's arguments in this case relates to her belief that she and her child were failed by the hospital when they were most vulnerable. This could be taken as a private interest in the release of the records concerned. Nevertheless, I note that among other things, she indicated that she considered there to be systemic issues with maternity care in Irish hospitals in general and this one in particular. She also argued that the release of the records sought would raise public awareness of what she considered to be mismanagement, poor communications and incompetence in the hospital concerned. It seems to me that those arguments are reflective of a general public interest in the disclosure of information that serves to allow for scrutiny of the activities of the hospital in question and of the levels of care afforded to its patients.

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, including those afforded to deceased persons under the FOI Act, 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).

I understand that a copy of the final report and findings were provided to the applicant following the completion of the SAR process. It seems to me that the public interest in the disclosure of information that serves to allow for scrutiny of the activities of the hospital in question and of the levels of care afforded to its patients has been served to a significant extent by the release of the final report. While I accept that the release of the records sought would further enhance transparency around the levels of care and treatment afforded to maternity patients in the hospital concerned, it seems to me that such additional transparency should not be at the expense of the privacy rights of the individuals concerned. In holding this view, I have had regard to the fact that the release of the records must be regarded as being effectively, or at least potentially, to the world at large.

Accordingly, in the circumstances of this case, while I have great sympathy for the applicant, I do not accept that the public interest in releasing the records outweighs, on balance, the privacy rights of the third party individuals concerned. I find, therefore, that section 37(5)(a) does not apply. Accordingly, I find that the HSE was justified in refusing access to the records sought on the basis of section 37 of the FOI Act.

As I have found the records to be exempt from release under section 37, I do not need to consider the HSE's reliance on section 30.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE's decision to refuse access to the records at issue under section 37 of the FOI Act. I find that the public interest, on balance, does not favour their release.

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

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You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Ms X and Health Service Executive [2024] IEIC 143037 (17 June 2024) URL: http://www.bailii.org/ie/cases/IEIC/2024/143037.html Cite as: [2024] IEIC 143037

Irish Information Commissioner's Decisions

Ms X and Health Service Executive