Ms X and the HSE West

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 29 May 2015
• Case Outcome: The Senior Investigator found that the HSE was justified in deciding to refuse access to records relating to the applicant, on the ground that the records are exempt under section 28 of the FOI Act. She affirmed the decision of the HSE.
• Court: Information Commission
• Record Number: 150065
• Respondent: HSE West

Whether the HSE was justified in deciding to refuse access to records relating to the applicant and/or her family members on the ground that they are exempt under sections 26 and 28 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

Background

On 7 July 2014 the applicant made an FOI request to the HSE for two letters which she says a member of staff of the HSE read out to her at a meeting in a nursing home on 14 August 2013. These letters were written by the applicant's nephew and niece. They concern the care of their mother (the applicant's sister), who is now deceased.
By letter dated 29 August 2014, the HSE refused access to both letters on the basis that they were exempt from release under section 26(1)(a) and section 28(5)(b) (sic) of the FOI Act.
On 1 January 2015, the applicant requested an internal review. The HSE issued an internal review decision by letter dated 22 January 2015, in which it affirmed its original decision.
The applicant applied to this Office for a review of the HSE's decision on 26 February 2015.
In conducting my review, I have had regard to the HSE's decision on the matter; the HSE's communications with the applicant and with this Office; the applicant's communications with the HSE and with this Office; 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the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Preliminary Matters

I would like to make the following points at the outset. First, while I am required to give reasons for my decision under section 34(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 43.
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. Section 13 shall not apply if the copy of the record provided would be misleading. I consider the relevance of section 13 below.

Analysis and Findings

Section 28
Sections 28(1) and 28(5B)
As noted above, the records which the applicant seeks consist of two letters. The first letter is referred to as pages 1 and 2 in the HSE's schedule. It does not mention the applicant. The second letter is referred to as page 3 in the HSE's schedule. It does mention the applicant.
I understand from the applicant that the HSE has already disclosed the contents of both letters to her by reading them out at a meeting on 14 August 2013. With certain limited exceptions (e.g. sections 28(2)(a) and 28(6), which I consider below), the FOI Act does not provide for the limiting of the access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.
Section 28(1) of the FOI Act provides that access to a record shall be...