Ms Y and The Health Service Executive

JudgeElizabeth Dolan Senior Investigator
Judgment Date30 September 2015
Case OutcomeThe Senior Investigator varied the HSE's decision and directed the release of a number of recommendations and other general material contained in the report. She affirmed the decision to refuse access to the main body of the report.
CourtInformation Commission
Record Number140327
RespondentHealth Service Executive
Whether the HSE was justified in its decision to refuse access to a protected disclosures inquiry report concerning the care of an individual on the basis that there are ongoing investigations and the record contains personal information of third parties that is exempt under the provisions of sections 21(1)(a) and 28(1) of the FOI Act
Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

On 15 July 2014 the applicant made a request to the HSE under the FOI Act for access to a named protected disclosures inquiry report (the Report).

In its decision dated 29 September 2014 the HSE refused access to the Report under the provisions of section 21(1)(a) and section 28 of the FOI Act on the basis that the Report forms part of an ongoing investigation into the care and treatment of the individual who is the subject of the Report and that release of the Report even in redacted form would disclose sensitive personal information of third parties. On 8 October 2014 the applicant sought an internal review of the HSE's decision. By letter dated 31 October 2014, the HSE informed the applicant that it had decided to uphold the original decision. In her letter dated 20 November 2014 the applicant wrote to this Office requesting a review of the HSE's decision.

On 5 March 2015 the HSE wrote to this Office stating that it intended to publish the Report in April following consultation with the Office of the General Solicitor for Minors and Wards of Court and An Garda Síochána. On this basis, Mr Richard Crowley, Investigator, contacted the applicant and agreed that this Office would suspend its review to await the HSE's decision on publishing the Report. Subsequently, in its letter of 12 June 2015 to this Office, the HSE indicated that it was still not in a position to release the Report at this time. Mr Crowley contacted the applicant by phone on 16 June 2015 at which time she indicated that she wished this Office to issue a decision on the matter. Mr Crowley wrote to the HSE on 29 July 2015 expressing his view that a number of the recommendations contained in the Report should be released and invited the HSE to make any further submissions before recommending a decision to this effect. After consulting the Garda, the HSE made a further submission to this Office on 13 August 2015 contending that the Report is exempt under section 23(1)(a)(i) of the FOI Act as its release may adversely affect ongoing investigations. I consider it appropriate to conclude my review of this matter at this time by way of a formal binding decision.

In conducting my review, I have had regard to the HSE's decision in this matter, to correspondence between this Office and the HSE, to correspondence between the applicant and the HSE and to contact between the applicant and this Office. I have also had regard to the Report in question and to the provisions of the FOI Act.

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.

Scope of the Review

This review is concerned solely with the question of whether the HSE was justified under the provisions of the FOI Act in its decision to refuse access to the Report sought by the applicant.

Preliminary Matters

Before setting out my findings, I should point out that while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record. This constraint means that, in the present case, the extent of the reasons that I can give is limited.

Secondly, section 13 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. However, the Commissioner takes the view that neither the definition of a record under section 2 nor the provisions of section 13 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.

It is relevant to note, as a preliminary matter, that section 8(4) of the FOI Act does not allow this review to have regard to any reasons as to why the applicant is seeking the record (although such reasons may be relevant to consideration of the public interest). Finally, it is relevant that the Courts have found that the release of a record under the FOI Act is akin to its release to the world at large.

Analysis and Findings

Section 28 of the FOI Act
Section 28(1) of the FOI Act provides that a public body shall refuse to grant access to a record where access would involve the disclosure of personal information relating to a person other than the requester.

In its submission to this Office the HSE contends that the disclosure of the Report even in its redacted form to the applicant would disclose sensitive personal information from which the client (the subject to the Report) would be readily identifiable by the applicant and perhaps others with background knowledge of the matters the subject of the Report. While the identity of individuals is redacted in the Report, I am satisfied that release "to the world" of the Report in full...

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