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Case Number: 160060

Whether the HSE was justified in its decision to redact the identity of a complainant from records of complaints made against the applicant under section 37(1) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant, on 29 October 2015, submitted a request to the HSE for records relating to a complaint made against her between 3 August 2015 and 1 October 2015. The HSE, on 10 December 2015, issued a decision granting the applicant partial access to 78 pages of records coming within the scope of the applicant's request. It made redactions throughout the 78 pages released to the applicant in order to protect the personal information of two third parties, the maker of the complaint and another person mentioned in the complainant's correspondence with the HSE.

The applicant, on 4 January 2016, sought an internal review of the HSE's decision, in which she requested that the identity of the person who made the complaint against her be released. The HSE issued an internal review decision on 5 February 2016, in which it affirmed its original decision to redact this information under section 37 of the FOI Act. The applicant sought a review by this Office of the HSE's decision on 9 February 2016.

In carrying out my review, I have had regard to the correspondence between the HSE and the applicant as set out above. I have also had regard to the communications between this Office and the applicant, and between this Office and the HSE. I have also had regard to the content of the records at issue.

Scope of Review

This review is concerned solely with the question of whether the HSE was justified in its decision to redact the identity of a complainant from records of complaints made against the applicant under section 37(1) of the FOI Act.

Analysis and Findings

Section 37(1) of the FOI Act provides that a public body shall refuse to grant a request where access to the record sought would involve the disclosure of personal information relating to a third party. For the purposes of the Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by an FOI body on the understanding that it would be treated by it as confidential. Section 2 of the Act further details fourteen specific categories of information which is personal information without prejudice to the generality of (a) and (b) above.

The information at issue consists of the name and email address of the complainant. The HSE has stated that it considers that this information was given to it in confidence. It is noteworthy that the HSE considered the complainant's identity to have been given in confidence as opposed to the details of the complaint made. In my view, it is reasonable for the complainant in this case to have understood that his/her identity would be treated as confidential, as opposed to the details of the complaint itself. I am satisfied, that the name and email of the complainant consists of the personal information of that individual for the purposes of the FOI Act, and I find, therefore, that section 37(1) of the FOI Act applies.

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. However, I am satisfied that none of those circumstances arise in this case. 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 information would be to the benefit of the person to whom the information relates.

As no evidence has been presented to this Office to suggest that the release of the record at issue would be to the benefit of the third party concerned, 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 considering the public interest test contained in section 37(5)(a), I have had regard to the judgment of the Supreme Court in the case of the Governors and Guardians Rotunda Hospital v Information Commissioner[2011] IESC 26. In this case, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual/s to whom that information relates. Following the approach of the Supreme Court, "a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law" must be distinguished from a private interest for the purpose of section 37(5)(a).

The FOI Act recognises a public interest in ensuring the openness and transparency of public bodies in how they perform their functions. However, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 and in 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 redacted information at issue in this review consists of the name and email address of an individual making a complaint to the HSE. The applicant has stated, in a submission to this Office, that she is seeking the identity of the complainant in order to protect her own career in the future. It would appear that this is, in essence, a private interest as opposed to a public interest as set out in the Rotunda judgment mentioned above. While there is a public interest in the HSE being open, transparent and accountable in the manner in which it performs its functions and deals with complaints against members of staff, I am of the view that this interest has been met to a large extent through the release of the content of the complaint to the applicant. Furthermore, I must also consider the public interest in safeguarding the flow of information to the HSE through members of the public being able to communicate in confidence with the HSE and the strong public interest in protecting the privacy rights of individuals as set out above.

I do not consider that the public interest in the release of the identity of the person making the complaint in this instance outweighs, on balance, the countervailing public interest factors in protecting the privacy of third parties, and related factors. I find, therefore, that section 37(5)(a) does not apply to the redactions at issue.

Accordingly, I find that the HSE was justified in its decision to redact the identity of the complainant and grant partial access to the records under 37(1) of the Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the HSE.

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