X and Health Service Executive

• Jurisdiction: Ireland
• Judge: Senior Investigator
• Judgment Date: 30 August 2021
• Case Outcome: The Senior Investigator annulled the HSE's decision and directed the release of the records.
• Court: Information Commission
• Respondent: Health Service Executive
• Record Number: OIC-103054-W6J6X8

Whether the HSE was justified in refusing access to records relating to a named nursing home and Covid-19, under sections 35, 36 and 37 of the FOI Act

30 August 2021

Background

On 16 September 2020, the applicant made an FOI request to the HSE for records relating to the HSE Area Crisis Management teams and HSE Covid Response teams. On 25 September 2020, he refined his request to minutes of HSE Area Crisis Management team meetings and the records of HSE Covid Response teams regarding nine named nursing homes. On 14 December 2020, the HSE issued a decision. It granted access to certain information and refused access to the remaining records under section 36 of the FOI Act. On 16 December 2020, the applicant applied for an internal review. On 4 January 2021, the HSE issued an internal review decision. It granted access to certain information and refused access to the remaining records under section 35(1)(a) and 37(1) of the FOI Act. On 28 January 2021, the applicant applied to this Office for a review of the HSE's decision to refuse access to records regarding one named nursing home (the nursing home).

In conducting my review, I have had regard to the correspondence between the applicant and the HSE as outlined above and to the correspondence between this Office and both parties, and the content of the records provided to this Office by the HSE for the purposes of this review. I have also had regard to submissions obtained from the nursing home during this review.

Scope of this Review

The scope of this review is confined to whether the HSE was justified in refusing access to records regarding the nursing home (the records) under sections 35, 36 and 37 of the FOI Act.

Preliminary Matter

Section 38

I note that the HSE consulted the nursing home by letter of 30 November 2020. The nursing home replied on 4 December 2020, objecting to release of the records. In its letter of consultation, the HSE referred to section 38 of the FOI Act. Section 38 applies to cases where, at some stage in the decision making process, the public body has formed the view that the record(s) in question qualify for exemption under one or more of the relevant exemptions in the FOI Act (i.e. sections 35, 36 and 37) but that the record(s) should be released in the public interest. Where section 38 applies, the public body is required to notify an affected third party before making a final decision on whether or not the exemption(s), otherwise found to apply, should be overridden in the public interest.

The Commissioner takes the view that the form of notification to the third party is very important. Section 38 provides that the notification should tell the person that, apart from section 38, the request falls to be granted in the public interest. The Commissioner takes the view that it would, therefore, be misleading to write to a third party implying that the decision maker had formed no opinion on the matter and was merely considering whether the third party would prefer if the information would not be disclosed.

In its letter of consultation, the HSE did not inform the nursing home that apart from section 38, the request fell to be granted in the public interest. It did not indicate that it had formed the view that it was in the public interest to grant access to the records. Furthermore, it progressed the case to an internal review, which is not in accordance with the procedure under section 38.

In the circumstances, I do not consider that this is a case to which section 38 applies.

Analysis and Findings

Section 37 - Personal information

Section 37(1)

The HSE claims that the records are exempt under section 37(1) of the FOI Act. Section 37(1) 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, including “(i) information relating to the educational, medical, psychiatric or psychological history of the individual”. Information which comes within any of the fourteen categories specified at paragraphs (i) to (xiv) is personal information - there is no requirement for it to also meet the requirements of paragraphs (a) or (b).

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.

The HSE says that due to the nature of the information that is specifically related to a nursing home and the information being associated with a date, it may be possible to identify a resident or staff member who may be suspected or confirmed as having Covid-19, as those individuals would be known to staff, residents and immediate contacts. It says that the HSE holds this information confidentially. It says that the public interest factors against release outweigh those in favour of release, as the right to privacy is a very strong right and the HSE has a duty to maintain the confidentiality of personal information.

The nursing home says that the information is associated with the dates of minutes and this could enable the requester to identify the residents or staff and their medical history, which constitutes personal information.

The records comprise excerpts from the minutes of 15 meetings of the Strategic Outbreak Control Team. They disclose the numbers of suspected and confirmed cases of Covid-19, hospitalisations and deaths, as they relate to the nursing home. They do not name the individuals concerned. They also disclose the names of those who attended the meetings. The HSE confirmed to this Office that all members of the Crisis Management Team are or were direct HSE employees.

The Commissioner accepts that an individual may not be named in a record, yet may still be identifiable. That said, section 37 provides for the refusal of a request where access to the record concerned would involve the disclosure of personal information (my emphasis). It seems to me that the mere possibility of such disclosure occurring, no matter how remote, is insufficient for section...