Mr X and the Health Service Executive

CourtInformation Commission
JudgeStephen Rafferty Senior Investigator
Judgment Date30 July 2015
Case OutcomeThe Senior Investigator varied the decision of the HSE by (i) affirming the decision to refuse access to the names of private consultants under section 28 of the FOI Act and (ii) annulling the decision to refuse access to the remaining withheld information.
Record Number140270
RespondentDefence Forces
Whether the HSE was justified in deciding to refuse access to parts of certain records concerning the DePuy ASR Hip Recall on the ground that the information concerned is exempt from release under sections 20, 21(1), 27(1) and 28(1) of the FOI Act
Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

The applicant submitted a request to the HSE for access to all reports/briefings in the National Incident Management Team (NIMT) regarding the DePuy ASR Hip Recall. In its decision of 17 April 2014, the HSE part granted the request. Of the 14 records it identified as coming within the scope of the request, it released 11 records in full and three records in part. The applicant sought an internal review of the HSE's decision to grant only partial access to certain records and on the ground that certain other records had not been considered for release. In its internal review decision of 5 May 2014, the HSE informed the applicant that it had considered an additional 29 records, of which it decided to release 10 records in full and 19 in part. Of the 19 records to which access was granted in part, 17 were redacted on the ground that the redacted information did not come within the scope of the request. The applicant wrote to this Office on 2 October 2014 seeking a review of the HSE's decision.

During the course of this review, following communications from this Office, the HSE identified three further records as coming within the scope of the request, two of which it released in full and one in part. It also released additional records/portions of records to which access had previously been granted in part. The applicant and the HSE have furnished detailed submissions to this Office and I consider that the review should now be brought to a conclusion by way of a formal, binding decision.

In reviewing this case I have had regard to the following:

  • the HSE's decisions on the matter,
  • the HSE's communications with this Office,
  • the applicant's communications with this Office,
  • communications between the applicant and the HSE on the matter,
  • the content of the withheld records provided to this Office by the HSE for the purposes of this review.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

In referring to the records at issue, I have adopted the numbering system used by the HSE in the schedules it has provided both to this Office and to the applicant.

Scope of the Review

The applicant is of the view that certain records should have been considered for release by the HSE. He argues that "exchanges between the NIMT and the HSE Dept's, Hospital, Consultants, IMB, Suppliers, Legal Teams etc." should have been considered. I agree with the HSE that the wording of the applicant's request is such that the records identified by the applicant are not captured by the request. However, this review will consider whether the HSE has taken all reasonable steps to locate all relevant records coming within the scope of the request. Having regard to the further release of information during the course of the review, it will also consider whether the HSE was justified in withholding certain information from the following records:

Records 2, 3, 4, 11, 13 and 15 from schedule 1
Two records identified as pages 133 - 137, and 138 - 143 from schedule 2 and which I will refer to for the purposes of this decision as records A and B respectively, and
Record 2 from schedule 3.

As I have outlined above, the HSE redacted information from 17 of the additional records it released at internal review stage on the ground that the information in question was not covered by the FOI request. Having examined the records, I agree. Therefore, the 17 records in question do not form part of this review.

Preliminary Matters

Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the HSE to satisfy this Office that its decision to refuse access to the information redacted from the records at issue was justified.

Analysis and Findings

Section 28(1)
The HSE relied on section 28(1) to refuse access to certain information contained in records 2, 3, 4, and 13 from schedule 1, records A and B from schedule 2 as described above and record 2 from schedule 3.
Section 28 provides for the refusal of a record where access would involve the disclosure of personal information relating to a person other than the requester. The FOI Act defines personal information in section 2 as "information about an identifiable individual that (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 a public body on the understanding that it would be treated by it as confidential." This section goes on to detail twelve specific instances of information which is regarded as personal including ".... (iii) information relating to the employment or employment history of the individual, ..... (vii) a number, letter, symbol, word, mark or other thing assigned to the...

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