Ms J and Health Service Executive

• Jurisdiction: Ireland
• Judge: Senior Investigator
• Judgment Date: 15 April 2021
• Case Outcome: The Senior Investigator affirmed the decision of the HSE.
• Court: Information Commission
• Respondent: Health Service Executive
• Record Number: OIC-99752-D0T9B8

Whether the HSE was justified in refusing access, under sections 17 and 37 of the FOI Act, to certain records, in whole or in part, relating to the applicant’s son held by the HSE’s Child and Adolescent Mental Health Services

15 April 2021

Background

In a request dated 10 August 2020, the applicant sought access to all records relating to her now adult son from April 2018 to 21 September 2019 held by the HSE’s Child and Adolescent Mental Health Services (CAMHS). Her son provided his consent for the release of his personal information to his mother. In a decision dated 10 September 2020, the HSE identified 247 records as coming within the scope of the request. It decided to part-grant the request, refusing access to a number of records in full or in part under sections 17 and 37 of the Act.

The applicant sought an internal review of that decision, following which the HSE issued a late internal review decision wherein it released some additional information. Overall, it granted access to 152 records in full and 78 in part. Access to 17 records was refused in full. The applicant sought a review by this Office of that decision.

During the course of the review, the HSE revised its position on some of the records and released a small amount of additional information, including information relating to the applicant’s other children who are minors, such that eleven further records were released in full and more information was released in 15 records to which access had already been granted in part. As a result, full access has now been granted to 163 records, 68 have been released in part, while the remaining 16 have been withheld in their entirety.

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 applicant’s comments in her application for review and to the submissions made by the HSE in support of its decision. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by the HSE in the schedule of records it prepared when processing the request.

Scope of Review

The review is concerned solely with whether the HSE was justified, under sections 17 and 37 of the Act, in refusing access to records 95, 96, 109, 110, 127 to 129, 137 to 142, 193, 207, and 225 and in redacting certain information from records 10, 11, 12, 14, 15, 17, 20, 23, 24, 26, 27, 29, 31, 33, 34, 36, 39, 40, 43, 45, 52, 63, 64, 65, 66, 67, 72, 79, 83, 85, 86, 88, 89, 91, 92, 93, 97, 99, 100, 102, 120, 121, 134, 135, 150, 162, 169, 187, 188, 191, 192, 194, 196, 200, 203, 204, 205, 206, 217, 218, 220, 221, 222, 231, 235, 238, 240 and 244.

Preliminary Matters

Section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record. As a consequence, the descriptions I can give of the nature of the records or the reasons for my findings in this case are necessarily limited.

It is also important to note that the release of a record under FOI is, in effect, regarded as release to the world at large given that the Act places no constraints on the uses to which a record released under the Act may be put.

Analysis and Findings

The HSE refused access to records 109 and 110 under section 17(2)(b)(ii). It refused access to the remaining records, in whole or in part, under section 37.

Section 17(2)(b)(ii)

Section 17 does not provide a ground for the outright refusal of access to records. Rather, it is concerned with the manner or form in which access to the records sought will be granted. Under section 17(1), an FOI body may grant access to a record by providing the requester -

a) with a copy of the record,
b) with a transcript of the information concerned,
c) where available in such form and subject to subsection (2), with a searchable electronic version of the record,
d) with a reasonable opportunity to inspect the record,
e) in case the record is of sound or visual images, with a reasonable opportunity to hear or view the record,
f) in case the information is in shorthand or other code, with the information unencoded in written form or such other form as may be determined,
g) with the information in such other form or manner as may be determined, or
h) with the information in a combination of any 2 or more of the foregoing.

Under section 17(2)(b), where the FOI body...