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Whether the HSE was justified in its decision to refuse the applicant's request for copies of his mother's application for nursing home support and related medical and financial records submitted with the application on the ground that the records contain personal information of third parties that is exempt from release under section 37 of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 16 April 2015 the HSE received a request from the applicant for a copy of the "Fair Deal Nursing Home Application Form and all medical and financial reports and financial details submitted with it" relating to his mother. In its decision of 30 April 2015 the HSE refused access to all relevant records on the ground that they contain the personal information of third parties. Following a request for internal review, the HSE affirmed its original decision on 23 June 2015. On 25 June 2015 the applicant applied to this Office for a review of that decision.

I note that during the course of this review Mr Benjamin O'Gorman of this Office informed the applicant of his view that the HSE was justified in its decision to refuse access to the records at issue. The applicant indicated he wished to proceed to a formal binding decision. In conducting this review I have had regard to correspondence between the applicant and the HSE, to correspondence between the applicant and this Office, to correspondence between the HSE and this Office, and to the contents of the records at issue.

Scope of Review

This review is concerned solely with the question of whether the HSE was justified in its decision to refuse access to the records at issue on the basis that they contain the personal information of third parties.

Analysis and Findings

The HSE refused access to the records at issue under section 37 of the FOI Act. Section 37(1) provides that access to a record shall be refused if access would involve the disclosure of personal information of parties other than the requester. Having reviewed the relevant records, I am satisfied that the withheld records contain personal information relating to third parties other than the applicant and that section 37(1) of the Act applies.

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. That is to say, (a) the information contained in the records does not relate to the applicant; (b) the third parties have not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) 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) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where, on balance:

(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.

As no evidence has been presented to this Office to suggest that the release of the records at issue would be to the benefit of the third parties concerned, I find that section 37(5)(b) does not apply. On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the persons to whom the information relates.

In his correspondence with this Office, the applicant expressed concerns that his siblings had previously exerted undue influence over his mother in relation to a transfer of ownership of the house in which his mother had lived. He argued that he requires the records at issue as he wants to know what happened to his mother's house and what financial details were submitted to the HSE in connection with the application for nursing home support. It seems to me that this is essentially a private interest argument.

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, 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".

The FOI Act recognises a public interest in ensuring the openness and transparency of public bodies in how they perform their functions. However, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 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 also worth noting that the right to privacy 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.

The records at issue in this case are of a private and personal nature. When a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put. The question I must consider is whether the public interest in granting access outweighs, on balance, the significant public interest in protecting the privacy rights of the individuals to whom that information relates. In my view, it does not. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that the HSE was justified in its decision to refuse access to the records sought under section 37(1) of the Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the HSE 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 four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator