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Whether the HSE was justified, under section 28 of the FOI Act, in its decision to refuse to grant access to a final report arising from the investigation of a complaint under its Dignity at Work Policy

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 16 July 2014, the applicant sought access to a copy of a final report arising from an investigation carried out by the HSE into a complaint under its Dignity at Work Policy. In its decision of 16 September 2014, the HSE refused access to the report under sections 26 and 28 of the FOI Act. By letter dated 25 September 2014, the applicant sought an internal review of that decision. While the internal reviewer upheld the original decision to refuse access to the report, he decided to release a number of records to the applicant in connection with her involvement as a witness in the relevant investigation, including a transcript of the applicant's interview which formed part of the investigation of the complaint. The applicant was not satisfied with the HSE's decision and on 26 November 2014 applied to this Office for a review of the HSE's decision to refuse to grant access to the report.

During the course of the review, Mr Benjamin O'Gorman of this Office informed the applicant of his view that the HSE was justified in refusing access to the report. The applicant indicated that she wished to proceed to a decision. I therefore consider that this review should now be brought to a close by the issue of a formal, binding decision. In conducting this review, I have had regard to the correspondence between the applicant and this Office, to correspondence between the applicant and the HSE and to correspondence between the HSE and this Office. I have also had regard to the provisions of the FOI Act and to the contents of the record at issue.

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the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.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

This review is concerned solely with the question of whether the HSE was justified in its decision to refuse access to the complaint investigation report sought by the applicant.

Preliminary Matters

I should explain that while 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 only 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Analysis and Findings

Section 28(1) and Section 28(5B)
Section 28(1) of the FOI Act provides that a public body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Furthermore, section 28(5B) provides that a public body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester, commonly referred to as joint personal information. I am satisfied that the report at issue contains personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals. I find therefore, that sections 28(1) and 28(5B) apply.

Under Section 28(2) there are some circumstances in which the exemption at sections 28(1) and 28(5B) do not apply. Having examined the record at issue, I am satisfied that none of those circumstances arise in this case.

Section 28(5)
Section 28(5) of the FOI Act provides that a request, which would fall to be refused under section 28(1) and section 28(5B), may still be granted where, on balance -

"(a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or

(b) the grant of the request would benefit the individual aforesaid,"

In my view the grant of the request would not benefit the individual or individuals to whom the information relates. I find that section 28(5)(b) does not apply in this case.

In considering the public interest test at section 28(5)(a), I have had regard to the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner, available at www.oic.gov.ie. In the judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, 'a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law' must be distinguished from a private interest for the purpose of section 28(5)(a).

The language of section 28 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the unenumerated personal rights under the Constitution). When considering section 28(5)(a), privacy rights will 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.

The applicant indicated that she wanted to review the final report to be satisfied that her statement had not been discredited or her reputation damaged by any statements or findings contained within the report. It seems to me that this is, in essence, a private interest as opposed to a true public interest. Nevertheless, the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. On this point, I understand that the HSE's Dignity at Work Policy requires that the complainant and the person against whom the complaint is made are given copies of the investigation report. I also note that the HSE provided the applicant with a copy of the transcript of her interview, as a witness. The question I must consider, therefore, is whether the release of the report would further serve the public interest to such an extent that it would outweigh, on balance, the public interest in protecting the privacy rights of the other individuals concerned. In my view, it would not.

I should explain at this stage that the release of a record under the FOI Act amounts, in effect, to disclosure to "the world at large" as the Act places no restrictions on the subsequent uses to which the record may be put. Therefore, the applicant's argument that the release of the report to her would not lead to any disclosure, as she herself is bound by confidentiality, is not a relevant consideration. Having regard to the contents of the report at issue, I am satisfied that the public interest in granting the applicant's request does not, on balance, outweigh the public interest that the right to privacy of the individual or individuals to whom the information relates should be upheld. Thus, I find that section 28(5)(a) does not apply.

Accordingly, I find that the HSE was justified in deciding to refuse access to the report sought under sections 28(1) and 28(5B) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the HSE's decision in this case.

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. Such an 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.

Stephen Rafferty,
Senior Investigator