Mr X and Health Service Executive [2024] IEIC 149597 (18 November 2024)

Background
Scope of Review
Analysis and Findings
Decision
Right of Appeal

Whether the HSE was justified in refusing access under section 15(1)(a) of the FOI Act to further records concerning the applicant-�s work grievance on the ground that no further records exist or can be found and whether it was justified under section 37(1) of the Act in redacting personal information from the records it released to the applicant

18 November 2024

Background

In a request dated 12 January 2024, the applicant sought access to all communications of which he is the subject, including emails, minutes of meetings and records of any telephone or electronic communications shared between three of his line managers and a named trade union official during the period 27 July 2023 to the date of his request. On 16 January 2024, after the HSE asked the applicant to clarify his request, the applicant explained the records he is seeking is specific to interactions related to an ongoing grievance process. He said he is only seeking records from the period the matter was escalated to a named manager.

On 5 March 2024, the HSE part-granted the applicant-�s request. It redacted the names of trade union representatives contained in the records under section 37(1) of the Act. The HSE also said it was refusing records held by the trade union under section 30(1)(b) of the Act. On 8 April 2024, the applicant sought an internal review of the HSE-�s decision. He said that most of the information provided is totally irrelevant to his request. He said he requested records of all communication shared between the four named individuals, which includes a union representative, but that he has not seeking any information held by the trade union. On 30 May 2024, the HSE varied its original decision. It released further information that had been redacted in a number of records and affirmed its decision to refuse the remaining information under section 37(1) of the Act.

On 6 June 2024, the applicant applied to this Office for a review of the HSE-�s decision. He said some of the records supplied to him appear to have had entire pieces of information removed and -�not redacted-�, so it was very difficult for him to identify information of relevance to him. The applicant said he is aware of emails and minutes of meeting that were not provided and also questioned the HSE-�s use of section 37(1).

During the course of this review, the HSE located additional relevant records on two occasions, which it released to the applicant with certain information redacted under section 37(1) of the Act. The Investigating Officer provided the applicant with details of the HSE-�s submissions to this Office, including details of the searches undertaken by the HSE to locate the records sought, and invited him to make submissions in the matter, which he duly did.

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 correspondence outlined above and to the submissions made by both parties. I have also had regard to the content of the records concerned. 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 whether the HSE was justified in refusing access, under section 15(1)(a) of the Act, to further records of communications concerning the applicant between the named parties on the ground that no further records exist or can be found, and whether the HSE was justified in refusing information contained in the records it released to the applicant under section 37(1) of the Act.

While the HSE also cited section 30(1)(b) of the Act in its original decision, I understand it did so on the basis that it considered the applicant was seeking records held by the relevant trade union. As noted above, the applicant clarified that he is not seeking access to any such records. Furthermore, I note the HSE did not rely on section 30(1)(b) in its internal review decision. Therefore, it is not necessary for me to consider this section of the Act any further.

While the applicant made his original FOI request to the HSE on 12 January 2024, he subsequently clarified his request on 16 January 2024. Accordingly, I consider the scope of the request includes records dated between 27 July 2023 and 16 January 2024.

Analysis and Findings

Section 15(1)(a)

While the HSE released a number of records concerning the applicant-�s grievance, the applicant contends there should be further emails and minutes of meetings that were not released to him. In his application to this Office, the applicant said he is not requesting records directly related to the trade union representative, nor records held by the union.

Section 15(1)(a) provides that an FOI body may refuse to grant a request when records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner-�s role in such cases is to review the decision of the FOI body and to decide whether the decision is justified. This means that the Commissioner must have regard to the evidence available to the decision maker in arriving at their decision. The evidence in -�search-� cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the record in question.

As noted above, the HSE provided this Office with details of the searches that it undertook to locate relevant records and its reason for concluding that no further exist, details of which were provided to the applicant. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purposes of this review.

In its submissions to this Office, the HSE said that the applicant-�s managers, who are the subject of his request, were instructed to carry out electronic and hard copy searches. It said the generic email of the Head of Primary Care was also searched. The managers were asked to search for records held on formal files, temporary folders, or records held in any other manner. Searches completed involved variations of the applicant-�s name.

During the course of this review, the HSE said that emails were searched again using the same variations of the applicant-�s name. The HSE said that it was discovered that using search parameters of a name and variations of a name does not always produce all emails subject to the search. The email accounts were searched for any relevant records during the requested time frame. The HSE said that this further search of emails accounts took considerable time as it had to go down through all emails rather than using a search function. During this process, additional records were found and were released to the applicant with personal information of other parities redacted under section 37(1) of the Act.

After receiving these additional records, the applicant contended there was evidence that a meeting had taken place between his managers and a trade union representative about the applicant-�s grievance. The applicant stated that records relating to this meeting should exist and be released to him. When this was put to the HSE, it responded by saying that while some of the released records did indicate that a meeting with the union representative was being arranged, the meeting had not taken place at the time of the request. The applicant was informed that if he wanted to request records relating to the meeting that was being arranged around the time of his original request, he could make a new FOI request to the HSE as any records of the meeting which post-dated his request are outside the scope of this current case.

The applicant argued that all records of correspondence arranging the meeting should have been released to him. The HSE was asked again if there were any further records of correspondence about arranging a meeting that fell within the timeline of the applicant-�s original request, i.e. all records of correspondence up to 16 January 2024. The HSE subsequently released a redacted copy of a further thread of emails which showed the meeting was being arranged to take place after the original request for records was made. Again, redactions were made to the records released by the HSE under section 37(1) of the Act. I will consider the information redacted in the records released to the applicant below.

After the release of these further records, the HSE said that all relevant records have been released and any records dated after 16 January 2024 would be subject to a new FOI request. It is important to note that a review by this Office is considered to be -�de novo", which means that in this case, it is based on the circumstances as they pertain at the time of my decision and is not confined to the basis upon which the HSE reached its decision. The FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the FOI body concerned takes all reasonable steps to locate relevant records. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should or might exist. Having regard to the submissions from both parties in this case, and in the absence of any evidence to the contrary, I am satisfied that the HSE has at this time taken all reasonable steps to ascertain the whereabouts of the records covered by the applicant-�s request. I find, therefore, that the HSE was justified in refusing access to further records coming within the scope of the applicant-�s request under section 15(1)(a) of the Act.

Section 37(1)

As noted above, the HSE redacted certain information contained in the records it released to the applicant under section 37(1) of the FOI Act on the basis that it is personal information of individuals other than the applicant.

The majority of the records released to the applicant are emails that the applicant either sent or received. I note, in his application to this Office, the applicant said that the actual information provided is several emails which have no bearing or relation to the information he requested. He said the remaining information is emails he initiated and a copy of some of the grievance he submitted. As such, it appears the applicant already knows much of the information that was redacted.

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. It is also important to note that the fact the applicant may be aware of the identity of the other individual does not mean that the information cannot be protected under section 37(1). For the purposes of the FOI Act, personal information is defined in section 2 of the Act 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 also details 14 specific categories of information which is personal without prejudice to the generality of the foregoing definition, including, but not limited to (iv) information relating to the individual-�s membership or former membership of a trade union.

The HSE redacted the name and contact details of trade union representatives in the records it released to the applicant. It also redacted a small amount of other personal information contained in the records. While much of this information is already available to the applicant, I am satisfied that it comprises personal information of individuals other than the applicant. I find that this information is exempt from release under section 37(1) of the Act.

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply in this case. Section 37(5) provides that a request that would fall to be refused under subsection (1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case and I find accordingly.

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 FOI 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 FOI Act places no constraints on the uses to which a record released under FOI can be put. 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 information redacted by the HSE effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.

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. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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.

In his original request to the HSE, the applicant said he is concerned there has been a breach of his confidentiality by the sharing of his personal information without his consent or knowledge. This Office considers that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. However, that does not mean that the privacy rights of third parties should be put aside in favour of the applicant wanting to know if his personal information has been shared with others.

In this case, the HSE released the records it located with a minimal amount of redactions relating to third parties. In my view, the release of this personal information would provide no further insight into how the HSE handled the applicant-�s grievance or in regard to his concerns about a breach of confidentiality. I am also cognisant of the fact that the release of information under the Act must be regarded, potentially at least, as release to the world at large. Having carefully considered the matter, I am not satisfied that the public interest in granting access to the information at issue outweighs, on balance, the public interest in upholding the right to privacy of the third parties concerned. I find therefore, that section 37(5)(a) does not apply.

Finally, in his application to this Office, the applicant said some of the records supplied to him appear to have had entire pieces of information removed and -�not redacted-�, so it was very difficult for him to identify information of relevance to him. While I appreciate that it may appear to the applicant there are gaps in the records he received, having reviewed the records at issue and the HSE-�s submissions, I am satisfied that the only information redacted in the records is the personal information of other parties, that I have found to be exempt under section 37(1) of the Act.

In conclusion, I find that the HSE was justified in refusing access to further records sought by the applicant under section 15(1)(a) of the FOI Act on the basis that such records either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. I also find that the HSE was justified in refusing the personal information of third parties contained in the records at issue under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE-�s decision.

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.

Richard Crowley

Investigator

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You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Mr X and Health Service Executive [2024] IEIC 149597 (18 November 2024) URL: http://www.bailii.org/ie/cases/IEIC/2024/149597.html Cite as: [2024] IEIC 149597

Irish Information Commissioner's Decisions

Mr X and Health Service Executive