Case number: OIC-118190-D4K2G8

Whether the HSE was justified in refusing access to records concerning the applicant’s application for a primary medical certificate

 

30 November 2023

 

Background

In a request dated 7 September 2021, the applicant submitted an FOI request to the HSE, seeking access to the following:

  • all written correspondence to him from the HSE in 2020,
  • all internal communications, including emails, memos and written correspondence in relation to his application for a primary medical certificate in the years 2020 and 2021.

In a decision dated 20 October 2021, the HSE part – granted the applicant’s request. The decision set out that over 230 pages of records had been identified as falling within the scope of his request. The HSE released 162 pages of records, five were partially granted and the remaining 63 pages were withheld under sections 31(1)(a), 31(1)(b) and 37(1) of the FOI Act. In respect of the records withheld, the HSE set out that it considered records 63 – 64 and 105 – 106 to be exempt under section 31(1)(a), as they relate to communication between the HSE and its legal advisors. It further stated that in respect of certain identified records, section 31(1)(b) applied on the basis that these records were prepared at the request of the Court, and the HSE did not have the consent of the Court to release them. Finally, the HSE considered that certain information in records 192, 185, 151, 74, 70, 25, 18 and 14 was exempt under section 37(1), as the documents in question contained personal information relating to third parties, and it did not have the consent of these parties to release the information concerned.

In respect of the public interest balancing test, which the HSE assessed under section 37(5)(a), the HSE’s decision maker considered the following public interest factors in favour of release:

  • The public interest in knowing how a public body performs its functions
  • The public interest in members of the public knowing that information held by public bodies about them, or those they represent is accurate
  • The public interest in members of the public exercising their rights under the FOI Acts

In considering the public interest factors, which favour withholding release, the decision maker took account of the following:

  • The public interest in protecting the right of privacy of members of the public
  • The public interest in members of the being able to communicate in confidence with public bodies without fear of disclosure to personal or sensitive matters.
  • The public interest in public bodies being able to perform their functions effectively
  • The public interest in safeguarding the flow of information to public bodies.

On 11 November 2021, the applicant sought an internal review of the decision. On 30 November 2021, the HSE upheld its earlier decision and refused to release any further records to the applicant.

On 17 January 2022, the applicant sought a review of the HSE’s decision by this Office. I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the submissions made by the parties to date, including the applicant’s comments in his application for review and to the submissions made by the HSE in support of its decision.  I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The HSE submitted that it redacted part of record 25 because it was outside the scope of the applicant’s request. Having examined the contents of record 25, I am satisfied that the first email does not relate to the applicant’s request and the HSE was justified in redacting the information concerned. I will not consider this record further.

Following consultation with the HSE and the applicant by this Office’s investigator, it was determined that all records which had been withheld under section 31(1)(b) would be released to the applicant. These records concerned a Supreme Court ruling, the judgement of which was relevant to the applicant’s application for a medical certificate. The HSE decided to release the relevant records after it noted that the Supreme Court had itself published the ruling. As such, my consideration of records within this appeal has now been confined to: records 62 – 63 and 105 – 106, and records 14, 18, 70, 74, 151, 185 and 192.

This review is therefore concerned solely with whether the HSE was justified in refusing the applicant’s personal records to him under sections 31(1)(a) and 37(1).

Analysis and Findings

Section 31(1)(a) – Legal Professional Privilege

Section 31(1)(a) of the FOI Act must be applied to a record that would be exempt from production in proceedings in a court, on the ground of legal professional privilege (LPP). It does not require the consideration of the public interest. LPP enables the client to maintain the confidentiality of two types of communication:

  • Confidential communications made between the client and a professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
  • Confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated and/ or pending litigation (litigation privilege).

In relation to advice privilege in particular, this privilege attaches to confidential communications made between the client and his/her professional legal advisor, in a situation where the legal advisor is acting in a professional capacity. The Commissioner takes the view that privilege also attaches to records that form part of a continuum of correspondence resulting from an original request for advice.  Furthermore, this Office accepts that, provided the ingredients of legal advice privilege or litigation privilege are present in any given case, the fact that the professional legal advisor concerned is employed as in-house legal advisor does not prevent the client from being able to assert privilege over the communications at issue. The concept of “once privileged, always privileged” applies to advice privilege, and thus, unless otherwise lost or waived, lasts indefinitely.

In the submissions, which the HSE provided, it has stated that the records should be withheld because they relate to communications between the HSE and its legal advisors. The HSE submitted that they should not be released because they relate directly to the case at hand.

The applicant has rejected the assertion that the information withheld should fall under legal privilege, as the data relates to his personal information only, which he argues is not subject to legal proceedings.

I have examined the records that have been refused under section 31(1)(a) of the FOI Act. I must be circumspect in my description of the records. They comprise communications between the HSE’s external solicitor/ legal advisor and the HSE in respect of the applicant’s application. Both sets of records refused under this section of the Act are duplicates of one another, save for a handwritten note on record 106. I should note, that records exempt under section 31(1)(a) do not have to be subject to legal proceedings for legal advice privilege to apply. 

As the applicant is aware from the HSE’s earlier correspondence, it is the position that the records comprise communications between the HSE’s legal advisor and other HSE staff for the purpose of providing legal advice. I have examined the records concerned and I am satisfied that this is the case. I am of the view that the records attract legal advice privilege and I find that they are exempt under section 31(1)(a) of the FOI Act. The HSE was therefore justified in its decision to withhold these records.

Section 37 – Personal Information

As set out above, the HSE has refused access to parts of records on the basis of section 37 of the FOI Act. It has argued that the records in question contain personal information related to third parties.

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI 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. This is commonly known as joint personal information.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information.

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers). In a case where the individual is or was a service provider, certain specific information about the service provider does not fall within the definition of personal information.

Record 192, which I have considered under this exemption relates to a postal receipt in respect of items issued by the applicant to the HSE. The applicant issued this information personally and it contains personal information relating to him such as an address and card details. Records 185, 151 and 74 also relate to correspondence issued by the applicant in respect of his application for a primary medical certificate, records 151 and 74 are duplicates of one another. In the records concerned, the applicant references the Supreme Court Judgement discussed above, and includes the names of the appellants. As previously discussed, this judgement in respect of this case, including the names of the appellants, is already in the public domain and accessible to anyone who searches the case or reference number. The HSE contends that the information is used in a different context within these records.

From my examination of the records, this does not appear to be the case, as the names are used within the context of the title of the Supreme Court case. Section 37(2)(c) provides that subsection(1) does not apply if – information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, available to the general public. As such, I consider that the records should be released in full. I am satisfied that section 37(2)(a) of the FOI Act is also applicable to these records in the circumstances.

Record 18 comprises internal emails, which relate to the applicant’s application for a medical licence, but which also contain the personal information of third parties. I am satisfied that the release of this information would involve disclosure of personal information relating to individuals other than the requester and that section 37(1) applies to the record.

Record 14 also comprises internal emails from the SMO to the Principal Medical Officer and Primary Care Unit Manager. The emails relate to a legal claim made by the applicant. From my examination of the record, the names of certain employees, which are cited and not redacted elsewhere in the record, should not be redacted.  The definition of personal information provided in the FOI Act specifically excludes information about members of staff of an FOI body, in certain circumstances, including where records are prepared by them in the course of their duties. I believe that the information redacted by the HSE falls within the exception to the definition of personal information provided by the FOI Act. I am also unaware of why an entire paragraph relating to administrative matters was redacted in full, where I see no basis under the FOI Act for redacting this information.

The email also redacts the name of the Head of Operations in respect of a letter which she issued in the course of her duties. This type of information falls squarely outside the definition of personal information contained at section 2 of the FOI Act. As such, I do not consider that this constitutes personal information and direct that it be released to the applicant.

As section 37(1) is subject to the other provisions of the section, I must go on to consider the applicability of subsections (2) and (5) to the information to which I have found section 37(1) to apply. Section 37(2) sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in relation to records 14 and 18. 

The Public Interest

Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still 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. I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.  

In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”. While the comments of the Supreme Court were made in the context of the public interest test in section 36, which is concerned with the protection of commercially sensitive information, I consider them to be relevant to the consideration of public interest tests generally.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and 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. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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.

Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find no relevant public interest in granting access to the information to which I have found section 37(1) to apply that, on balance, outweighs the public interest in upholding the right to privacy of the individuals to whom the information relates. I find that section 37(5)(a) does not apply in this case.

I find therefore that the HSE was justified, under section 37(1) of the Act, in redacting certain information from record 18. I find that it was not justified in refusing access, under section 37(1), to the remaining records, as set out above. I direct the release of the information to which I have found section 37(1) not to apply.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE’s decision.

  • I affirm its decision to refuse access, to records 63 – 64 and 105 – 106, pursuant to section 31(1)(a) of the Act.
  • I affirm its decision to refuse access, to information redacted in record 18, pursuant to section 37(1) of the Act.
  • I annul its decision to refuse access to information under section 37(1) in record 14.
  • I annul its decision to refuse access to records 192, 185, 151 and 74. I direct the release of these records in their entirety.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

 

Deirdre Gallagher
Senior Investigator