Whether the HSE was justified in its decision to redact certain information from 15 pages of the file it holds concerning the applicant's daughter under section 37(1), to grant access to two records by way of inspection only under section 17(2)(b)(ii), and to refuse access to any additional records under section 15(1)(a) on the ground that no further relevant records exist

6 April 2018 

Background

On 3 July 2017, the HSE received a request from the applicant for a copy of his daughter's file. In its decision of 28 August 2017, the HSE granted access to the vast majority of the records in full. Minor redactions were made to 15 pages under section 37 of the FOI Act on the ground that the redacted information was personal information relating to third parties. It also decided to grant access to two records by way of inspection only on the ground that providing copies of the records would involve an infringement of copyright.

On 10 September 2017 the applicant sought an internal review of that decision. He also indicated that he had not received copies of certain other records. As he did not receive a response to his request for internal review he contacted this Office on 7 November 2017 and sought a review of the HSE's decision. Following correspondence with this Office, the HSE issued a further letter to the applicant wherein it stated that it had decided to affirm the original decision. It also refused access to additional records under section 15(1)(a) on the ground that no further relevant records exist

The applicant subsequently contacted this Office by email and stated that he wanted the review to proceed as the files he received are up to 2015 only and that additional records should exist. During the course of the review, Ms Hannon made several efforts to contact the applicant to clarify certain aspects relating to the scope of the review but he has not engaged with the review. She also wrote to him to inform him of the details of the HSE's submission as to why it considered that it identified all relevant records but received no response. Therefore, I consider it appropriate to bring this case to a close by way of a formal, binding decision.  In conducting the review I have had regard to correspondence between the applicant and the HSE and to the correspondence between this Office and both the applicant and the HSE on the matter. I have also had regard to the content of the withheld records provided to this Office by the HSE for the purposes of this review.

 Scope of the Review

This review is concerned solely with whether the HSE was justified in its decision to redact certain information from 15 pages of the file it holds concerning the applicant's daughter, to grant access to two records by way of inspection only, and to refuse access to any additional records on the ground that no further relevant records exist.

Analysis and Findings

Section 15
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The role of this Office in cases such as this is to review the decision of the FOI body and to decide whether that 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 decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. 

The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable.

While the applicant suggested that he had received records only up to 2015, I note that the file contains records that were created in 2016 and 2017 and the HSE has confirmed that the records provided to this Office were identical to those released to the applicant. However, I also note from his correspondence with the HSE that he specifically referred to the absence of a certain type of record, that he referred to as an "Adult Service Meeting". Indeed, the HSE treated his request for internal review as a specific request for such additional records.

In its submission to this Office, the HSE explained that before an individual is allocated to a social worker, the case is discussed at an Adult Service Meeting. When the individual is allocated to a social worker, the case is discussed in a supervision setting with the social worker and her supervisor. It said it released the relevant supervision notes and as no further Adult Service Meetings took place concerning the applicant's daughter, no further records exist.

In view of the explanation provided by the HSE, and in the absence of any evidence having been presented to this Office to suggest otherwise, I accept the HSE's explanation as to why no further records of the type sought exist. I find, therefore, that the HSE was justified in refusing access to further relevant records sought under 15(1)(a) on the ground that no such records exist.

Section 17
The HSE decided to grant access to two records by way of inspection only on the ground that providing copies of the records would involve an infringement of copyright. I am unclear as to whether or not the applicant had an issue with this. However, for the avoidance of doubt, I will address the matter. Under section 17(2)(b)(ii), a public body is entitled to grant access in a form other than that requested where granting access in the manner requested would involve an infringement of copyright. The records at issue in this case comprise Interview and Profile forms and are entitled "Supports Intensity Scale Interview and Profile Form - Adult Version". I understand that the American Association on Intellectual and Development Disabilities owns the copyright in these forms. I find, therefore, that the HSE was justified in deciding to grant access by way of inspection only.

Section 37- Personal Information
The HSE redacted a small amount of information from 15 pages under section 37(1) on the ground that the information was personal information relating to third parties. Section 37(1) of the FOI Act provides for the mandatory refusal of a request where the FOI body considers that access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester, including personal information relating to a deceased individual. The information at issue comprises names, addresses and telephone numbers of individuals other than the applicant or the applicant's daughter. I am satisfied that all of the information withheld by the HSE is personal information relating to individuals other than the applicant and the applicant's daughter. I find, therefore, that section 37(1) applies.

The effect of section 37(1) applying is that a record disclosing personal information relating to a third party or third parties cannot be released to another person, unless one of the other relevant provisions of section 37 applies, which I will deal with below.

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Section 37(5) of the FOI Act 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 granting of the information would be to the benefit of the person to whom the information relates. No argument has been made that release of the information at issue would benefit the individuals to whom the information relates and I find that section 37(5)(b) does not apply.

On the matter of whether section 37(5)(a) applies, I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individuals to whom the information relates. The FOI Act acknowledges that there is a public interest in ensuring the openness and accountability of public bodies in the manner in which they perform their functions. On the other hand, the 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 it 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 applicant has not put forward any reasons as to why there would be a public interest in releasing this information and I fail to see how the release of the information at issue would further serve to enhance the transparency and accountability of the HSE in relation to the services provided that would outweigh, on balance, the privacy rights of the individuals to whom the information relates. I find, therefore, that section 37 (5)(a) does not apply. 

Accordingly, I find that the HSE was justified in its decision to redact certain information from the records under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the HSE's decision to redact certain information from 15 pages of the file it holds concerning the applicant's daughter under section 37(1), to grant access to two records by way of inspection only under section 17(2)(b)(ii), and to refuse access to any additional records under section 15(1)(a) on the ground that no further relevant records exist.

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