Mr Colm Ó Mongáin, RTE, Donnybrook, Dublin and the Health Service Executive

• Judge: Peter Tyndall Information Commissioner
• Judgment Date: 17 August 2016
• Case Outcome: The Information Commissioner varied the HSE's decision and directed the release of the records, subject to the redaction of certain personal information, under section 37 of the FOI Act. He found that the HSE had not justified its decision to apply the section 30(1)(a) exemption
• Court: Information Commission
• Record Number: 160199
• Respondent: HSE

Case Number: 160199

Whether the HSE's refusal of access to records relating to its handling of an apology to a service-user is justified under section 30(1) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by the Information Commissioner

Background

On 28 January 2016 the applicant made an FOI request to the HSE for "all records concerning the delivery of an apology to a client or clients of WIDA (Waterford Intellectual Disability Association)...", including contacts between named HSE managers and staff from November 2015. By letter dated 6 April 2016, the HSE refused access to the records, on the basis that they were exempt under section 30(1)(a) of the FOI Act. On 8 April 2016, the applicant applied for an internal review. By letter dated 4 May 2016, the HSE issued its internal review decision, in which it affirmed the original decision. The applicant applied to my Office for a review of the HSE's decision on 4 May 2016.

In conducting this review I have had regard to the HSE's decision; the HSE's communications with the applicant and with this Office; the applicant's communications with the HSE and with this Office; the submissions of the HSE; the content of the withheld records, provided to this Office by the HSE for the purposes of this review and to the provisions of the FOI Act.

Scope of the Review

The question for this review is whether the HSE is justified in withholding access to the records numbered 0; 0a; 1a-1i; 2; 3; and 4 by the HSE, under section 30(1)(a) of the FOI Act.

It became clear in the course of the review that the HSE's decision was not accompanied by a schedule of the records which it had identified as coming within the scope of the request. This is unsatisfactory and goes against the guidelines of the Central Policy Unit of the Department of Public Expenditure and Reform (DPER) on FOI decision-making and scheduling of records. Consequently, the applicant was not made aware of the dates or descriptions of the records to which the HSE applied the section 30(1)(a) exemption. My Office prepared a schedule - attached at Appendix 1 - with a view to giving the applicant some indication of the nature of records identified and dealt with in my decision. It is based on a more detailed HSE schedule supplied to my Office which might disclose information in records claimed to be exempt.

Preliminary Matters

Before I consider the exemptions claimed, I wish to make the following points.

First, it is important to note that section 22(12)(b) of the FOI Act provides that when I review a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the HSE to satisfy me that its decision is justified.

Secondly, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116. In The National Maternity Hospital and The Information Commissioner[2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained:

"The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

Thirdly, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. The extent to which I can describe the records at issue is particularly limited in this case.

Finally, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. I take the view that neither the definition of a record under section 2 nor the provisions of section 18 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, I am not in favour of the cutting or "dissecting" of records to such an extent.

Analysis and Findings

Section 37(1) - Personal Information

The HSE did not claim the section 37 exemption over the records. However, having reviewed their content, I consider it appropriate to consider it given the extent to which the records contain personal information.

Section 37(1)

Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include: "(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" and "(v) information relating to the individual in a record falling within section 11(6)(a)". Section 11(6)(a) of the FOI Act refers to personnel records of members of staff of FOI bodies.

Firstly, I consider that there can be no doubt but that names, initials and any references which might lead to the identification of the service-user concerned and family members, are personal information under the FOI Act.

Secondly, paragraph I of section 2 of the FOI Act excludes certain matters from the definition of "personal information", including the names of staff members of an FOI body and information relating to their office. Paragraph II also excludes certain information about service providers. However, as this Office observed in Case 090045 (Mr X and University College Cork), this exclusion "is intended, in essence, to ensure that section 28 [now section 37] will not 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". As noted above, the personnel records of staff members of FOI bodies are included within the definition of personal information. I do not consider that the references to named staff comprise "personnel records" in this instance.

The records under review concern the handling of an apology to a service-user of the HSE. This apology and events surrounding it have been the subject of consideration by the Public Accounts Committee (PAC) and have attracted considerable media attention. The HSE says that it is conducting an internal review into the handling of the apology and referred - albeit in its arguments concerning section 30(1)(a) - to the need to have fair procedures where staff actions are being investigated. In those circumstances, I am satisfied that the names of certain HSE staff members fall within the definition of "personal information" in the context in which they appear in the records and do not fall into the categories of information in paragraph I of section 2 of the FOI Act. In addition, there are small amounts of personal information in the records that do not concern the individuals' official duties.

Having regard to the above, I find that the following information is exempt from release under section 37(1):

Record 0: the...