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Whether the HSE was justified in deciding to refuse access to correspondence between the HSE and an Garda Síochána on the ground that the records are exempt from release under sections 20(1), 21(1), 22(1)(a), 23(1), 28(1) and 46(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

Background

The applicant made an FOI request to the HSE on 6 September 2013 for access to all files held by the HSE in relation to himself and his children since 5 July 2013. In its decision of 14 October 2013, the HSE refused access to records numbered 1 - 14 on the ground that the records are exempt from release under section 22(1)(a) of the FOI Act. The applicant applied for an internal review of the HSE's decision to refuse access to correspondence from an Garda Síochána (the Garda) to the HSE and from the HSE solicitors to the Garda. The original decision was upheld in the HSE's internal review decision of 25 October 2013.
The applicant wrote to this Office on 12 February 2014 seeking a review of the HSE's decision.
In its submission of 2 April 2014, the HSE claimed that sections 20(1), 21(1), 23(1), 28(1) and 46(1) also applied to exempt the withheld records. This Office received a submission from the Garda on 21 April 2015 as the HSE had sought its views on release of the records. On 13 and 14 May 2015, Alison McCulloch, Investigator of this Office outlined to the applicant her view that section 23(1)(a)(i) and section 28 applied to the records. I consider that the review should now be finalised by way of a formal, binding decision.
In reviewing this case I have had regard to the following:
the HSE's decision on the matter,
the Garda and the HSE's communications with this Office,
the applicant's communications with this Office,
communications between the applicant and the HSE on the matter,
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.

Scope of the Review

The HSE refused access to records numbered 1 - 14. However, record numbered 4 - 6 is a letter dated 30 September 2013 which is after the date of the original request. Further, record numbered 7 is not correspondence between the HSE or its solicitors and the Garda and since the right of review by the Commissioner arises from a decision under section 14 of the Act (the internal review decision), the scope of the review must be confined to those records of correspondence between the Garda and the HSE and its solicitors, which the applicant sought in his internal review application. Therefore, this review is concerned solely with whether the HSE was justified in refusing access to the letter to the HSE from the Garda dated 25 July 2013 (record numbered 1-3)and the response dated 4 September 2013 from the solicitor acting on behalf of the HSE (record numbered 8-14).

Preliminary Matters

Section 13

I should explain the approach to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent.

Section 43(3)
Section 43(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description I can give of the records themselves is very limited.

Analysis and Findings

While the HSE relied on various sections of the FOI Act to refuse access to the requested records, I agree with Ms McCulloch that sections 23(1)(a)(i) and 28 are the most appropriate exemptions.

Section 23
Section 23(1)(a)(i) provides that a request for access to a record may be refused if "access to the record concerned could, in the opinion of the head, reasonably be expected to-

(a) prejudice or impair -

(i) the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid,"

Section 23(1)(a)(i) is a 'harm' based exemption. Public bodies must show how the harm or outcome anticipated could reasonably be expected to result from the release of the records. The link between the information contained in the record and the potential harm expected from its release must be identified by the body.

The records at issue in this case include references to a medical report concerning a child. In its submission to this Office, the HSE claimed that disclosure of the material contained in the records would disclose the views of the Director of Public Prosecutions (DPP), the Garda and the HSE regarding evidence that would be necessary to prosecute an offence in this case. It contended that " ...disclosure of the documents in question could prejudice the ability of An Garda Síochána to investigate and prosecute matters of criminality in relation to offences against children by allowing persons who may be of interest to An Garda Síochána to have prior knowledge of that interest". The HSE further stated that "disclosure of the HSE and the DPP/Gardaí's views on these matters could reasonably be expected to reveal methods of investigations in such a way as to frustrate a future successful prosecution....."

According to the Garda, the evidence discussed in the records at issue is central to an ongoing investigation, of which the applicant is aware. It contended that release of the records could impair the prosecution's case. Although the Garda stated that a prosecution will not be taken against one named individual, it said that the investigation into the alleged sexual abuse of a child is ongoing and the files are still with the Garda. It appears that there is at least a possibility that evidence outlined in the records could be used in any prosecution. The Garda argued that release of these records would have a detrimental effect on the investigation. There is also the possibility that the Garda or the DPP may cause further enquiries or investigations to be made into the matters dealt with in the records. In these circumstances, it seems to me that the provisions of section 23(1)(a)(i) are relevant insofar as access to the records could reasonably be expected to prejudice or impair the investigation of and prosecution of offences or the effectiveness of lawful methods employed for such investigation or prosecution. While section 23(1)(a)(i) refers to offences and offenders (in the plural) I accept that the section applies even if access could reasonably be expected to prejudice or impair the investigation of only one particular offence.

As a general proposition I would accept that those carrying out investigations must be allowed a fair degree of latitude, subject to the need for fair procedures, to decide when information already in their possession should be made available to a party which is the subject of the investigation. If a party subject to investigation by the Garda or a public body has a right to be fully informed at all times of the state of knowledge of the investigating authority, then it would appear to be inevitable that this would impair the investigation of offences. In this particular case, I am satisfied that the release of some (but not all) of the information in the records which are the subject of this review could reasonably be expected to prejudice or impair the investigation. Therefore I find that the exemption in section 23(1)(a)(i) applies to exempt certain parts of the records from release.

Section 23(3) - The Public Interest
Section 23(1)(a)(i) is subject to section 23(3) which provides that consideration must be given to the possibility that the public interest would be better served by the release of a record, rather than by it being withheld, in the event that one of three conditions is fulfilled.

The first condition is that the record under consideration "discloses that an investigation for the purpose of the enforcement of any law...is not authorised by law or contravenes any law". The second condition is that the record contains information concerning "the performance of the functions of a public body whose functions include functions relating to the enforcement of law or the ensuring of the safety of the public (including the effectiveness and efficiency of such performance)" and the third condition is that it contains information concerning "the merits or otherwise or the success or otherwise of any programme, scheme or policy of a public body for preventing, detecting or investigating contraventions of the law". Having examined the records, I consider that some of the information in them could be held to be information that satisfies the second of the three conditions listed above in that it concerns the performance of functions relating to law enforcement or ensuring of the safety of the public. Therefore, I must consider the public interest in this case.

In relation to the question of where the public interest lies, I have had regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"]. In the Rotunda Hospital case, the Supreme Court drew a distinction between private interests and public interests. The comments of Fennelly J. indicate that a request made "by a private individual for a private purpose" is not a request "made in the public interest". Moreover, in the opinion of Macken J., the public interest would require "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law".

There is a public interest in individuals being able to exercise their rights under the FOI Act in order to enhance their understanding of the reasons for actions taken by public bodies. There is also a public interest in increasing the openness and transparency of actions taken by public bodies, including those with responsibility for childcare. Further, there is also a public interest in the HSE (now TUSLA) being able to operate an effective child care policy to ensure the safety and security of children and in safeguarding any potential investigation or prosecution arising from that work. In particular, it does not seem to me to be in the public interest to risk disclosure of details that could enable individuals to escape eventual prosecution for any crimes committed. In this case. I consider that, on balance, the public interest would be better served by refusing than by granting the request. I find that the application of section 23(1)(a)(i) of the FOI Act is justified.

Section 28
As there are parts of the records which do not, of themselves, contain information which, if released, could reasonably be expected to prejudice or impair an investigation or prosecution, I have decided to consider those parts in the context of section 28 of the FOI Act. The HSE also claimed that section 28 applied to exempt certain parts of the records.

Section 28(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. In a situation where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information about another party (or parties), and where it is not feasible to separate the personal information from that relating to the other party (or parties), it can be described as joint personal information. Section 28(5B) provides for the refusal of a request for information which, if released, would result in the disclosure of personal information about other parties as well as about the requester.

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. In light of that definition, I accept that parts of the records contain personal information or joint personal information relating to family members and/or family members and the applicant and/or his children. It may well be the case that much of the withheld information is generally known to the applicant. Nevertheless, I must consider that, when a record is released under the FOI Act, this, in effect, amounts to disclosure to "the world at large", as the Act places no restrictions on the subsequent uses to which the record may be put.

It is possible to extract occasional sentences or parts of sentences from the records and argue that they comprise personal information relating solely to the applicant and/or his children. However, such information appears in these records in the context of investigations into allegations against third parties by the HSE and the Garda. It is clear that although such information relates to the applicant and/or his children, it also relates to the other third parties. Given the context of the information, it may be more correctly described as joint personal information. I am satisfied that, given their context and content, the records do not contain information which is personal information relating solely to the applicant and/or his children. In considering this aspect, I have taken account of section 13(2) of the FOI Act as referred to earlier in this decision. I consider that these records contain information which constitutes either (a) personal information relating to other persons solely or (b) joint personal information relating both to the applicant and/or his children and those other persons. Therefore, I find that, subject to the provisions of section 28(2) and section 28(5) which I examine below, the remaining parts of the records are exempt from release on the basis of section 28 of the FOI Act.

Section 28(2)
There are some circumstances, provided for at section 28(2) of the FOI Act, in which the exemption at section 28(1) does not apply. Having examined the details to which I have found section 28(1) and/or section 28(5B) to apply, I am satisfied that none of the circumstances identified at section 28(2) arise in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of that information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I find that section 28(2) does not apply to the records at issue here.

Section 28(5) - The Public Interest
Under section 28(5), however, access to the personal information of a third party may be granted where:

(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or
(b) the grant of the information would be to the benefit of the person to whom the information relates.

I do not believe that the grant of the information would be to the benefit of the third parties concerned.

I accept, as discussed above in the context of the section 23 exemption, that there is a public interest in openness and accountability with respect to the performance by the HSE of its functions, including its role in safeguarding children. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - in both in the language of section 28 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY"). It is worth noting that the right to privacy also has a Constitutional dimension as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. I consider that, in the circumstances of this case, the rights to privacy of the various third parties whose information is at issue outweighs any public interest in granting the applicant's request. I find accordingly.

As section 23(1)(a)(i) and section 28 have been found to exempt these records from release, I am not required to consider whether any of the other exemptions claimed by the HSE applies.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the HSE to refuse access to the withheld records on the basis of section 23(1)(a)(i) and section 28 of the FOI Act.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Any such appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator