Whether the HSE was justified in its decision to refuse access in full or in part to certain records in the files of the applicant under sections 31(1)(a) and 37(1) of the FOI Act

27 July 2018 
 

Background

On 24 November 2017, the applicant requested access to all records held by the HSE relating to her employment with the body between 1 July 2014 and 25 November 2017. The applicant's request was referred in parts to four areas within the HSE, namely, the South/SouthWest Hospital Group (SSWHG), the HR Department, Cork University Hospital (CUH) and Cork University Maternity Hospital (CUMH). In its original decisions, issued by the various areas between 20 December 2017 and 22 January 2018, the HSE granted access to a number of records in all four areas and refused access in full and in part to other records on the basis of section 31(1)(a) (legal professional privilege) and section 37(1) (Personal Information) of the FOI Act. Following a request for a internal review, the HSE released a small number of additional records and in addition to affirming its decision on the basis of sections 31 and 37, it also refused access to records under section 29 (Deliberations of FOI bodies) of the FOI Act. On 29 January 2018, this Office received an application for review of the HSE's decision from the applicant.

During the review, the HSE released a number of additional records in part and in full. The HSE also informed the investigator that it was no longer relying on section 29 to exempt any of the records the subject of this review. Also, in a decision schedule of the 'Employee Relations Department', the HSE initially refused access to records 42-52 inclusive, on the basis of section 37(1) of the Act. However, in a submission, the HSE stated that those records are not within the scope of the applicant's request as they pre-date the dates stated on her FOI request. Having examined those records, I am satisfied that they are not within the scope of the applicant's request. 

The HSE also provided this Office with additional records that it located during the review. The HSE confirmed to this Office that it had not made a decision on those records. If those records are within the scope of the request, they have effectively been withheld. I do not consider it appropriate for this Office to make a first instance decision on records which have not been considered by the FOI body. I propose to annul that part of the decision and require the HSE to make a new decision in respect of the additional records located. The HSE has said that it will make arrangements to do so. This may well address the applicant's contention that further records should exist although she did not provide any detail as to "missing records".

This case has been relatively complex to deal with given the nature and number of the records and the fact that various areas of the HSE made separate decisions. The HSE was unable to provide this Office with copies of the subject records within a normal timescale, so that a notice under section 45 was served to the Head of the HSE requiring it to furnish the information. This was complied with. 

I consider that this review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to submissions received from the HSE and the applicant and to correspondence between the applicant, the HSE and this Office. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. 

Scope of Review

This review is concerned solely with whether the HSE was justified in deciding to refuse access, in full and in part, to certain records on the basis of sections 31(1)(a) and 37(1) of the FOI Act.

Preliminary Matters

In her submission, the applicant explained why she wanted access to the records. It would not be appropriate here to go into the detail of her concerns. However, section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions. 

The applicant raised an issue of concern to her about how her request was processed by the HSE. I would note here that reviews carried out by this Office are de novo reviews, which means that the Commissioner considers all of the circumstances and information which exist on the date of a decision. I stress that the findings which follow concern the applicant's right to access records under the FOI Act and do not extend to other matters related to issues concerning the applicant and the HSE.

Section 18(1) of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. However, this should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. The Commissioner takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

Findings

Section 31(1)(a)
Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. It does not require the consideration of the public interest. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (legal advice privilege), and 
• confidential communications made between the client and a professional legal adviser or the legal adviser and a third party or between the client and a third party, the dominant purpose of which is preparation for contemplated/pending litigation (litigation privilege). 

The HSE stated that records are withheld on the basis of legal advice privilege. 

Advice Privilege
Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. The concept of "once privileged always privileged" applies where privilege is based on advice privilege, and thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. In case 020281 (Mr.  X and the Department of Education and Science),the former Commissioner considered records which may not, on an individual basis, satisfy the criteria for the attraction of LPP but which form part of a series of communications regarding the giving or receiving of legal advice. She referred to the following comments by Mr. Adrian Keane in "The Modern Law of Evidence" [(4th Ed.), Butterworths, 1996, at pp. 521-522]: 

-�Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice. In Balabel v Air India [(1988) Ch. 317; [1988] 2 All E.R.., 246, CA.] ...[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings-� There will be a continuum of communications and meetings between the solicitor and client-� Where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach.-�

The Commissioner takes the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice. 

Having examined the records, I accept that many of them qualify for legal advice privilege and disclose legal advice sought or received from the HSE's professional legal adviser.

I do not accept, however, that all of the records exempted by the HSE under section 31(1)(a) qualify for legal advice privilege. Some of the records contain communications between the staff of the HSE only and/or third parties, while other records refer to administrative matters relating to the functions of the HSE's Human Resource Unit. A small number of records comprise communications to and from the applicant's solicitor or other third parties, which cannot be held to be confidential communication between the HSE (the client) and its legal advisers. As such, I am of the view that those records do not contain details of legal advice requested or given and is it not apparent how they form the basis for any request for legal advice subsequently sought. 

Accordingly, I uphold the HSE's refusal of information in certain records, listed in the schedule at the end of this decision, under section 31(1)(a) of the FOI Act. However, in the circumstances, I find no basis for concluding that other records qualify for exemption under section 31(1)(a) on the basis of legal advice privilege. Accordingly, I find that other records listed in the schedule are not exempt under section 31(1)(a). 

In considering the exemption applied by the HSE under section 31(1)(a), I am of the view that some other records do not qualify for legal advice privilege but I have taken those records into consideration in my decision under section 37 below and referred to them separately in the schedule.

Section 37- Personal Information

Section 37(1)
Section 37(1) of the FOI Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including "(xii) the name of the individual where it appears with other personal information relating to the individual or where disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual". 

Paragraph I of section 2 of the Act excludes certain matters from the definition of personal information where the individual holds a position as a member of the staff of the body, including his or her name, information relating to the position held or to the functions of the position, and the terms and conditions upon and subject to which the individual holds that position. However, this Office considers that the exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant while carrying out his or her official functions. The exclusions to the definition of personal information do not deprive public servants of the right to privacy generally. 

Section 37(7) provides that a request shall be refused where access to a record would, in addition to involving disclosure of personal information relating to the requester, also involve the disclosure of personal information of other individuals (joint personal information).

While I cannot discuss their content in any detail, I can state that the information withheld in full and in part in the records contain relatively small pieces of information relating to other individuals. I am satisfied that in some of the records the information about individuals in the workplace is not of a type that would come within the exclusions to the definition of personal information. 

Having reviewed the relevant records and redactions, I am satisfied that all of the withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals. Accordingly, I find that the withheld information is exempt under section 37(1) of the Act.

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. Section 37(7) is also subject to section 37(2(b) to (e). I am satisfied that none of those circumstances arise in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

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 grant of the information would be to the benefit of the person to whom the information relates.
I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply. 

Section 37(5)(a) - The Public Interest
In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

In considering the public interest test at section 37(5)(a), I have had regard to the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] IESC 26 ("the Rotunda case") (available at www.oic.ie). In the judgment, 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 itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, 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. Accordingly, when considering section 37(5)(a), privacy rights will 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. 

In my view, the information withheld in the records is private in relation to persons other than the applicant. I cannot identify a public interest which would override the Constitutional rights to privacy of the third parties to whom the records relate. The public interest has been served to a large extent by the release of many records in full or in part to the applicant. I therefore find that section 37(5)(a) does not apply in the circumstances and that the withheld information in the records is exempt under section 37(1) of the FOI Act.

I am satisfied that with the exception of a small number of records to be released, all of the remaining withheld information which I have found not to qualify for legal professional privilege is personal information relating to individuals other than the applicant. Accordingly, I find that section 37(1) of the Act applies to the records.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the HSE. I affirm its decision to refuse access to a number of records (detailed on the attached schedule) under section 31(1)(a) of the Act on the basis of legal professional privilege. I direct the release of records to which access should be granted as identified in the schedule, subject to redaction of third party personal information. I affirm the HSE's decision to refuse access in full and in part to the remaining withheld records under section 37(1) of the FOI Act, on the basis that they contain the personal information of individuals other than the applicant. I find that the public interest in granting the request does not outweigh the public interest in upholding the privacy rights of other individuals. 

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator