X and Health Service Executive

CourtInformation Commission
JudgeSenior Investigator
Judgment Date30 Aug 2021
Case OutcomeThe Senior Investigator annulled the HSE's decision and directed the release of the records.
RespondentHealth Service Executive
Record NumberOIC-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...

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