Case 030847. Request for records of correspondence between the Hospital and the Post Mortem (Dunne) Inquiry and between the Hospital and others pertaining to the Inquiry - whether disclosure would constitute a breach of a duty of confidence - section 26(1)(b) - whether the information was provided to a public body in confidence - section 26(1)(a) - whether the records relate to the business of an inquiry - section 22(1A) - whether the records qualify for legal professional privilege - section 22(1)(a) - whether the records relate to the deliberative process of a public body - section 20(1) - whether release could prejudice the effectiveness of investigations by a public body - section 21(1)(a) - whether release could prejudice the fairness of civil proceedings in a court or other tribunal - section 23(1)(a)(iv) - whether release would involve the disclosure of personal information - section 28.
The requester sought from the Hospital access to records comprising correspondence with and relating to the Dunne Inquiry which was set up by the Minister for Health and Children to review post mortem examination policy, practice and procedure in the State since 1970.
The Hospital released some of the records and refused access to the remainder on some or all of the following grounds:- that disclosure would involve a breach of a duty of confidence [section 26(1)(b)]; that the records contained matter relating to the Hospital's deliberative process, the release of which would be contrary to the public interest [section 20(1)] and that release of the records would prejudice the effectiveness of investigations conducted by the Hospital [section 21(1)(a)]. In the course of the review, the Hospital also argued that the records were protected by legal professional privilege [section 22(1)(a)] and that access to the records could reasonably be expected to prejudice or impair the fairness of civil proceedings [section 23(1)(a)(iv)]. It also stated that section 22(1A) applied; this exemption allows for the refusal of access to records relating to the business of an inquiry and was inserted into the FOI Act, 1997 by the FOI Amendment Act, 2003.
The requester applied to the Commissioner for a review of that decision. During the course of the review, the Hospital agreed to identify and make available to the requester some 24 of the records which formed part of its submission to the Inquiry. Before the Commissioner made her decision, it was announced that the Inquiry would cease to exist on 31 March 2005.
The Commissioner makes it clear in this case that where, in the course of a review, legislation or circumstances change, she will make her decision on the basis of the facts and circumstances (including a change in the legislation) applying at the time of her (the Commissioner's) decision.
The Commissioner took the view that section 22(1A) is potentially relevant only where, at the time of the decision, the performance of the functions of the tribunal, body or individual which the exemption is designed to protect, has not been completed. Being satisfied that, at the time of her decision, the Dunne Inquiry had concluded and no other body or individual had been appointed to enquire in to the subject matter of the records, she concluded that section 22(1A) had no application in this case.
In relation to section 26(1), the Commissioner found that most of the records had been prepared by the staff of the Hospital or by its legal team in the course of the performance of their functions. This meant that section 26(2) applied so that any duty of confidence which might exist in respect of the information in records prepared by the Hospital would have to be owed to the Inquiry itself or to third parties in order for the section 26(1) exemption to be upheld. Given that the Inquiry has ceased to exist, the finding was that the undertakings given in the confidentiality agreement no longer have any force. The Commissioner went on to conclude that, in these circumstances, a duty of confidence based in equity does not apply either, having regard, amongst other things, to the fact that the now defunct Inquiry would not be in a position to sustain an action for breach of confidence.
In relation to correspondence between the Hospital and third parties, including pharmaceutical companies, the Commissioner considered that, having regard to the context of their creation and their communication to the Inquiry, the records do not contain information having the quality of confidence necessary in order that an action for a breach of the equitable duty of confidence should succeed. She also found that the information was not imparted in circumstances imposing an obligation of confidence and that use by the Hospital could not be regarded as unauthorised. Describing the records at issue as communications between the Hospital and those with which it had arrangements relating to its work, she noted that the correspondence did not relate to individual patients or their next of kin. She expressed the view that, as a general proposition, section 26 is not intended to protect the interests of public bodies and found that these records did not qualify for exemption under section 26(1)(b).
The decision also deals with the section 26(1)(a) exemption which the Hospital addressed in its submissions. Where information was given by the Inquiry to the Hospital, the Commissioner considered that neither party could reasonably have an understanding or expectation that correspondence between them would remain confidential. Much of the Inquiry's correspondence related to procedural or administrative matters and the conclusion was that, even if some of the information had the necessary quality of confidence, the second and third requirement of section 26(1)(a) could not be met. Similarly, the Commissioner found that section 26(1)(a) did not apply to the records received from pharmaceutical companies and other third parties.
Regarding the other exemptions invoked by the Hospital, the Commissioner found that sections 20(1), 21(1)(a) and 23(1)(a)(iv) did not apply in this case. She commented that were it necessary to apply the public interest test provided for at section 20(3), given the content of the records, the passage of time since their creation, the fact that the Inquiry has concluded and the very substantial public interest served by transparency in relation to how public bodies conduct their business on behalf of the public, she would find that the public interest would, on balance, be better served by granting the FOI request.
The Commissioner did not accept the Hospital's argument that the records are protected by "litigation privilege". She found that the dominant purpose of their creation was not contemplated or pending litigation and that they do not comprise confidential communications between lawyer and client seeking or giving legal advice. Accordingly, the section 22(1)(a) exemption does not apply.
The Commissioner also directed that where the possibility arose that individual patients or next of kin could be identified from dates or other information, such information be withheld from the copy of the records to be released. In applying section 28(1) to this information and to other information which would, in the ordinary course of events, be known only to certain individuals, their families or friends, the Commissioner had regard to the fact that the requesters had stated that they did not wish to have access to individuals' medical records and that she could find no public interest in the requesters having access to the personal information of individuals which outweighs the public interest that the right to privacy of those individuals be upheld.
The Commissioner varied the decision of the Hospital and directed that all except parts of 2 records together with some records which did not come within the scope of the request of the records be released.
Our Reference: 030847
Mr. Raymond Bradley
Dear Mr Bradley
I refer to your application to this Office under the Freedom of Information (FOI) Act, 1997 for a review of the decision of Our Lady's Hospital for Sick Children (the Hospital) on your request dated 10 December 2002 on behalf of your clients Parents for Justice. I apologise for the long delay which has occurred in bringing this review to a conclusion.
My consideration of the case was well advanced some weeks ago when it was announced that the Inquiry, to which the records relate, would cease to exist on 31 March 2005. Where, in the course of a review, additional facts come to light or where there is a change in circumstances relevant to the review, it is my practice is to take these into account for the purposes of completing the review. This means that, for reasons which will become clear in the course of my consideration of the matter below, I consider that I must have regard to the current status of the Inquiry.
The Minister for Health and Children announced, in April 2000, the setting up of an Inquiry "to review post mortem examination policy, practice and procedure in the State since 1970". The terms of reference of the overall Inquiry envisaged its work being conducted in two phases with the first phase being conducted by Senior Counsel, Ms. Anne Dunne, and the second phase consisting of the report by Ms. Dunne being referred to the Oireachtas Joint Committee on Health and Children.
In your request to the Hospital of 10 December 2002 you sought access to: "1. Copies of any formal submission delivered or intended to be delivered by your Hospital to the Post Mortem Inquiry, otherwise known as the Dunne Inquiry. 2. Copies of all correspondence between your Hospital and the said Inquiry. 3. Copies of all correspondence between your Hospital and the Department of Health pertaining to the said Inquiry. 4. Copies of all correspondence between your Hospital and other relevant parties pertaining to the said Dunne Inquiry."
I note that similar requests were made by you to other hospitals and to former health boards and that a number of these decisions are the subject of separate applications for review to my Office.
The initial decision of the Hospital, dated 8 January 2003, was to refuse your request in relation to all but two of the records. The grounds stated for withholding access to items 1, 2 and 3 of your request were that disclosure of the records would involve a breach of a duty of confidence [section 26(1)(b)]; that disclosure could harm the deliberative process of the Hospital [section 20(1)]; that release of the records could harm "certain operations" of the Hospital including the effectiveness of tests, examinations or investigative functions conducted by it [section 21(1)(a)]; that disclosure of the records could prejudice the outcome of proceedings in a court [section 23(1)(a)(iv)]. There was also a reference to section 22 although legal professional privilege or contempt of court was not mentioned in the decision. The Hospital went on to state that access to the records in item 4 of your request was being refused under section 10(1)(c) of the Act because the granting of your request for all records of correspondence between the Hospital and "other relevant parties" pertaining to the Inquiry would, by reason of the number of records concerned, require the retrieval and examination of such a number of records as to cause substantial and unreasonable interference with the other work of the Hospital.
In its internal review decision of 5 February 2003, the Hospital affirmed the initial decision insofar as it applied to items 1 and 4 of your request. In relation to items 2 and 3, a schedule of records comprising correspondence between the Hospital and the Inquiry and between the Hospital and the Department of Health and Children was provided and some 26 records were released to you. A further record (record 23 relating to item 3) which was originally withheld was released to you on 22 January 2004. The Hospital's decision stated that the remainder of the records under items 2 and 3 were exempt in each case (but one) by reference to sections 20(1), 21(1)(a) and 26(1)(b) for the reasons given in that decision. The one exception to this is a record numbered 4 under item 3 of the original schedule (which appears to be marked as an attachment to record 8 in the copies of the records forwarded to my Office); this record was refused solely by reference to section 21(1)(a) of the FOI Act.
Although the terms of reference envisaged that Ms. Dunne's report would be submitted to the Minister within six months, at the time of commencing my review the Dunne Inquiry report had not been submitted to the Minister. As third parties whose interests might be affected by the outcome of this review, my Office notified the Post Mortem Inquiry (the Inquiry) and the Department of Health and Children.
I have conducted this review of the Hospital's decision in accordance with the provisions of the Freedom of Information (FOI) Act, 1997, as amended by the Freedom of Information (Amendment) Act, 2003. All references in this decision to particular sections of the FOI Act, except where otherwise stated, refer to the FOI Act, 1997 as amended.
In carrying out this review, I have had regard to -
I have also examined the records at issue, copies of which were provided by the Hospital for the purposes of this review.
In your submissions, you suggested that I should use my powers under section 42(5) of the FOI Act to refer questions of law arising in this review to the High Court for determination. Having considered the matter, I did not find it necessary, in this case, to refer any such questions to the High Court.
In your submission of 26 August 2004, in response to preliminary views put to the parties by Elizabeth Dolan, Investigator, of this Office, you agreed that unless additional categories of records came to light during the course of her investigation, the scope of Item 4 of your request could be confined to records of correspondence with the following "other relevant persons"-
(a) other hospitals
(b) health boards
(c) pharmaceutical companies
(d) professional, expert or staff representative bodies.
No additional class of third parties came to light in the course of this review.
You also agreed that the only "internal" Hospital correspondence within the scope of the request is that forwarded to the Inquiry as part of the Hospital's submissions or in the course of other correspondence. Finally, I understand from your contacts with my Office that your clients are not seeking access to the medical records of identifiable individuals or to correspondence with next of kin of deceased persons.
Arising from this clarification of the scope of the review, my Office asked the Hospital to provide details of the "third party" records which it held and which were not included in the records covered by item 1 of your request. In response, the Hospital provided schedules and copies of the relevant records which have been incorporated into the schedules prepared by my Office and attached to this decision. Records provided, which have been found to be outside of the scope of your request, are noted as such in the schedules. In the circumstances, I am satisfied that the Hospital is no longer relying on the exemption in section 10(1)(c) in relation to any part of your request.
The attached schedules are numbered 1 to 4 in accordance with items 1 to 4 of your request. References in this decision to the "First Schedule" are to the Inquiry's questions under that heading and the Hospital's response to them.
In addition, the Hospital agreed and co-operated with my Investigator's suggestion that it might identify for you records forming part of its submissions to the Inquiry which were publicly available. I understand that on 3 February 2005, the Hospital supplied you with a list of 24 such records (mainly appendices to its First Schedule submission to the Inquiry) and offered to copy or provide the sources for these records for you on request. Accordingly, I do not find it necessary to deal further with such records which are identified in the schedules attached to this decision.
In relation to the records which comprise the Hospital's response to the Inquiry's First Schedule, many of these are dated 20 December 2002 which is after the date of your FOI request. When my Office queried this with the Hospital, it stated that the formal submission was not finalised until 20 December 2002 but had been prepared and was almost ready for transmission to the Inquiry at the time of your request. Therefore, the Hospital treated those records as being among those "intended to be delivered" to the Inquiry and within the scope of your request. According to the Hospital, its formal response to the Inquiry's Second Schedule had not been created at the time of your request and was not delivered to the Inquiry until 2003.
In its decisions to refuse your request, the Hospital relied upon the exemptions at sections 20, 21(1)(a) and 26(1)(b) of the FOI Act, 1997. In the course of this review, the Hospital sought to rely also on the exemption at section 22(1A) - this provision having been inserted into the FOI Act, 1997 by the FOI Amendment Act, 2003. I will also examine the records in the context of sections 22(1)(a), 23(1)(a)(iv) and 26(1)(a) because the submissions of the Hospital in this review include arguments in relation to these exemptions. Before dealing with the exemptions claimed, I wish to make a number of preliminary points.
Conduct of the Review
I note that you raised questions about my Office's handling of the review and, in particular, our adherence to the normal practice of not providing you or other parties with copies of submissions received in the course of the review. I consider that your concerns were addressed by my staff in correspondence with you and that the review was conducted fairly with regard to the rights and interests of all relevant persons. I do not propose to revisit the arguments here other than to point out that section 37(6) of the FOI Act provides that the procedures for conducting a review shall be such as the Commissioner considers appropriate in all the circumstances of the case and as informal as is consistent with the performance of my functions. I accept fully that these procedures must meet the standard of fair procedure/constitutional justice and I am satisfied that this standard has been met in the present case.
After the announcement that the Inquiry had ceased to exist on 31 March 2005, my Investigator wrote to the Hospital on 4 April 2005 and informed it of her view that any duty of confidence which the Hospital might owe in relation to information in the records could no longer be owed to the Inquiry. She invited the Hospital to make submissions on this point and on her view that section 22(1A) of the Act no longer applied. On 11 April 2005, the Hospital requested that the period allowed for reply be extended by four weeks. I did not accede to this request and submissions on the situation pertaining after the conclusion of the Inquiry were received from the Hospital on 11 April and on 14 April 2005; the latter submission is stated to be based on Counsel's advice. However, I note that the Hospital has emphasised that it considers the setting of such a deadline to be unreasonable. Given that the Hospital's additional submissions have been received and taken into account and having regard to its previous submissions and to the length of time this review has been on hands in my Office, I do not accept that it is unreasonable for me to bring the case to finality at this stage. I am satisfied that the principles of fairness, of natural and of constitutional justice have been met in relation to the opportunities afforded to the parties to have their submissions considered before I make a final, binding decision.
Justification of decision on review
Section 34(12)(b) of the FOI Act, 1997 provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the public body shows to my satisfaction that the decision was justified. In order to address as fully as possible the arguments made by the parties, this decision examines each of the exemptions claimed in the internal review decision and during the course of this review. However, it is important to note that the effect of section 34(12)(b) is that the onus rests on the public body to justify its decision to refuse to grant the request.
I have proceeded on the basis that the FOI Act gives you a potential right of access to all of the records sought under Item 1 of your request (copies of the Hospital's formal submissions to the Inquiry), even though a number of the responses to the Inquiry's queries rely on material which came into existence before the commencement of the Act (21 April 1998). I propose to treat such records as "new" records by virtue of their being an integral part of the submission which was created after the commencement of the Act. I note that the Hospital's decision did not refuse access to any of these records on the basis that they were created before the commencement of the Act; I consider this to be the correct approach. It seems to me that each of the records in the Hospital's submission to the Inquiry is presented, in the particular circumstances of this case, not as "a copy ... of a record" as envisaged in the definition of "record" at section 2 of the Act, but as part of the submission. Thus, I have not found it necessary to ask you to address the exception in section 6(5)(a) of the Act whereby a potential right of access to records created before the commencement of the Act exists if access is "necessary or expedient in order to understand records created after such commencement".
Precautions against disclosure
While I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. I must also refrain from disclosing information which a party to a review contends is contained in an exempt record so as to preserve that party's right of further appeal to the High Court.
Motivation of requester
You express concern at the Investigator's opinion that, under the FOI Act, the reasons or motives of the person making the request must not be taken into account. In this regard I would refer you to section 8(4) of the FOI Act which requires decision makers to disregard any reason that the requester gives, and any belief or opinion as to what those reasons are, in deciding whether to grant or refuse a request for access to records. Section 8(4) is prefaced by the phrase "Subject to the provisions of this Act, ..." and I accept that this means that there is not a total bar on having regard to the motivation of the requester in making a request. In particular I accept that, in applying a public interest test, the identity and motivation of the requester may sometimes be of relevance and may, in such instances, be taken into account.
In any event, I accept that in my review I can have regard to the Long Title to the FOI Act and its stated purpose "to enable members of the public to obtain access [to information in the possession of public bodies] to the greatest extent possible consistent with the public interest and the right to privacy". I will certainly have regard to your arguments on the public interest and take them into account when it comes to considering those exemptions relied upon by the Hospital which include a public interest override (sections 20, 21, 26 and 28).
The FOI Amendment Act
The position I have adopted following the enactment of the Freedom of Information (Amendment) Act, 2003 is that all reviews must be carried out on the basis of the legislation current at the time of my decision, irrespective of when the original request or the application for review were made. The basis for this approach is grounded in the High Court judgement of Mr. Justice Ó Caoimh dated 31 July 2001 in the case of the Minister for Education & Science and the Information Commissioner (1999 No. 99 MCA). The case involved records of the Leaving Certificate Examination results for a particular year. In his ruling, Mr. Justice Ó Caoimh stated:
"it is clear that the decision that was to be made by the Information Commissioner in light of the appeals taken to him were to be made in light of the facts and circumstances applying at the date of the review by him and not those facts and circumstances pertaining on the date of the original decision."
He found that there was no bar to section 53 of the Education Act, which came into force on 5 February 1999 (after the decision of the Department), applying to the subsequent decision of the Commissioner which was made on 7 October 1999. In these circumstances, the application of section 53 of the Education Act was found to be retroactive rather than retrospective. The key element in this aspect of Mr. Justice Ó Caoimh's judgement was his conclusion that the approach of the Commissioner did not involve any interference with a vested right as the right to information under FOI (created by section 6 of the FOI Act) does "not vest until a decision has been made"; and in this context it is clear that the "decision" envisaged by Mr. Justice Ó Caoimh includes the decision of the Information Commissioner, as appropriate.
I have considered carefully your detailed legal submissions on this issue. You express the view that the above decision of Mr Justice Ó Caoimh is "a bad precedent" because it is a decision in relation to legislation outside the scope of FOI legislation. You say also that it is your understanding that it had been agreed between the parties to that High Court case that the Commissioner's review was in the nature of a de novo hearing and that, accordingly, this was not part of the ratio decidendi of the Court. I do not dispute that my predecessor approached the appeal on the basis that his decision was based upon the circumstances prevailing at the time of the decision and involved a fresh appraisal of the facts and circumstances of the case. It appears that this approach was also adopted by the Minister for Education and Science in the proceedings. However, this does not take from the fact that, in his judgement, Mr Justice Ó Caoimh accepted that section 34 of the FOI Act should not be "... construed narrowly as involving merely a review of an earlier decision and not involving a rehearing...". My position is that the terms of section 34(2) go beyond a review of the decision whose only outcome would be that I could affirm, vary or annul that decision; section 34(2)(b)(ii) allows me to substitute a new decision as I consider proper. Accordingly, in regard to applying the facts and circumstances current at the date of the review, I consider Mr Justice Ó Caoimh's ruling to be more applicable in the present case than the findings of an earlier High Court judgement (The Minister for Agriculture and Food v the Information Commissioner (2000) 1IR309) which, in your submission, applies.
I will now address each of the exemptions claimed by the Hospital as supporting its decision to refuse your request.
Section 22(1A) and (1B)
Section 17 of the Freedom of Information (Amendment) Act, 2003 inserts two new subsections into section 22(1) as follows:-
"(1A) A head may refuse to grant a request under section 7 if the record concerned relates to the appointment or proposed appointment, or the business or proceedings, of -
......(b) any other tribunal or other body or individual appointed by the Government or a Minister of the Government to inquire into specified matters at least one member or the sole member, of which holds or has held judicial office or is a barrister or a solicitor ...and the request is made at a time when it is proposed to appoint the tribunal, body or individual or at a time when the performance of the functions of the tribunal, body or individual has not been completed.
(1B) Subsection (1A) does not apply to a record in so far as it relates to the general administration of, or of any offices of, a tribunal or other body or an individual specified in that subsection."
I am satisfied that up to 31 March 2005, this discretionary exemption was potentially relevant to the records insofar as they related to the business or proceedings of a body (the Inquiry) appointed by the Minister for Health and Children and chaired by Senior Counsel. I do not consider that any of the records can be said to relate to the general administration of the Inquiry or of its offices. The stated position of the Hospital, as set out in its submission of 16 September 2004, is that it would have invoked the section 22(1A) exemption had it been available to it and that I should now exercise discretion and apply that exemption thus refusing access to the records. Your position, as I understand it, is that even if the option to consider section 22(1A) existed - and I recognise you dispute that this was the case - it would be erroneous for me to exercise discretion in favour of applying section 22(1A) to the records in this case.
It is reasonable to assume that section 22(1A) is designed to protect the interests of a particular tribunal/inquiry. However, as far as the Chairman and sole member of the Inquiry is concerned, the functions of the Inquiry have been completed and it ceased to exist on 31 March 2005. My understanding is that this is also the position of the Tánaiste and Minister for Health and Children. My Office put this change in circumstances to the Hospital by letter of 4 April 2005 and invited it to comment. In its responses dated 11 April and 14 April 2005, the Hospital addressed some of the other exemptions in the light of the current position but did not make any reference to section 22(1A).
I take the view that section 22(1A) is potentially relevant only in circumstances where, at the time of the making of the decision (inclusive of my review decision), the performance of the functions of the tribunal, body or individual has not been completed. I consider that the fact, as mentioned in the Hospital's submission, that the Inquiry's findings have yet to be revealed to the parties is an entirely separate matter. I am satisfied that at this time the "Dunne" Inquiry has concluded and that no other tribunal or other body or individual has been appointed to enquire into the matters the subject of the records. I note also that section 22(1A) specifies that the tribunal, body or individual to which the exemption relates must have as a member a person who holds or has held judicial office or is a barrister or a solicitor. I take this to mean that the exemption is not potentially relevant until the members of any Inquiry have been selected and their names announced. In these circumstances, I do not think that the section 22(1A) exemption has any application to this case and I do not find it necessary to examine it further in my decision.
Section 22(1)(a) - Legal Professional Privilege
Section 22(1)(a) provides that
" A head shall refuse to grant a request under section 7 if the record concerned-
(a) would be exempt from production in proceedings in a court on the ground of legal professional privilege".
Legal professional privilege enables the client maintain the confidentiality of two types of communication: confidential communications made between the client and his/her legal adviser for the purpose of obtaining and/or giving legal advice, and communications made between the client and a legal adviser or the legal adviser and a third party or between the client and a third party, the dominant purpose of which is preparation for contemplated/ pending litigation.
The Hospital says in its submissions that it is claiming "litigation privilege" over its submission to the Inquiry and the other records withheld; it argues that civil proceedings are now in being and that the information before the Inquiry could, "due to its lack of immunity", be utilised for such proceedings. In considering whether particular records would be exempt from production in a court, I must bear in mind that legal professional privilege resides with the client and ignore the likelihood or otherwise of court proceedings taking place. The question comes down to whether the client would succeed in withholding the document on the grounds of legal professional privilege in court proceedings.
I do not accept your contention that it is incumbent on me to seek submissions in relation to each and every record, in respect of which legal professional privilege is claimed, before I determine whether the record is privileged or not. I consider that my examination of the content of each record, together with consideration of the authorities on the legal concept of privilege and the submissions of the parties, is sufficient to enable me to conclude whether or not the exemption applies.
The submission of the Hospital to the Inquiry comprises the Hospital's responses to a series of questions (First Schedule) put to it by the Inquiry. The responses are, for the most part, a mixture of fact, description and opinion about aspects of the Hospital's work in the areas the subject of the Inquiry's terms of reference. In some instances, pre-existing records have been collated in order to respond to the requests for information made by the Inquiry.
I note that neither the formal submissions nor the other records include communications from the Hospital's legal advisers; although I accept that some of the material may have been prepared with their input. In this regard, I am advised that, in certain circumstances, legal professional privilege will also apply to internal communications, not involving a legal adviser, provided such communications arise in the course of dealing with litigation, contemplated or pending. In his judgement in Silver Hill Duckling Limited, Ronald Stuart Steele and Elizabeth Patricia Steele v The Minister for Agriculture, Ireland and the Attorney General [1987 I.R 289] O'Hanlon J. held that the defendants in that case were entitled to claim privilege in respect of internal documents prepared in connection with the claim and for the primary purpose of dealing with the claim which was being formulated on behalf of the plaintiffs.
Furthermore, in its judgement in the case of Blaise Gallagher (A Minor suing by his mother and next friend, Avril Gallagher) v Joseph Stanley and the National Maternity Hospital  2 I.R. 267) it was held by the Supreme Court that the test in relation to privilege was whether the dominant purpose for which the particular internal documents came into being was in apprehension or anticipation of litigation. The Hospital's submissions in addressing the possibility of litigation put forward several definitions of "litigation privilege" but do not deal with the purpose for which the records at issue were created which, as I see it, is critical to the application of the test in this case. From my examination of the records contained in the submission, they cannot be said to be communications having as the dominant purpose for their creation contemplated or pending litigation. I find that the dominant purpose of their creation was, in the case of the pre-existing records, the carrying out of the Hospital's functions, and, in the case of those records which directly address the Inquiry's queries, the furnishing of a response to the Inquiry. Regardless of whether litigation was in prospect at the time the submission was prepared, it cannot be said that the records which make up the submission were created primarily in contemplation of defending a claim against the Hospital or of other litigation.
In regard to the first limb of legal professional privilege as defined above, I should make it clear that I have not seen in the records nor has my attention been drawn by the Hospital to any confidential communications made between it and its professional legal advisers for the purpose of obtaining and/or giving legal advice.
Accordingly, I find that the records are not exempt in accordance with the provisions of section 22(1)(a) of the FOI Act.
Section 22(1)(b) - contempt of court
Section 22 (1)(b), as amended, exempts records in situations where the decision maker knows, or ought reasonably to have known, that their disclosure would constitute contempt of court. Although it was not relied upon in the original decisions, my Office enquired of the Hospital and of yourselves whether the exemption at section 22(1)(b) was of relevance i.e. if any of the records under review have been the subject of an undertaking to a court by way of discovery or otherwise. As none of the records under review were identified as being subject to such an undertaking, I do not find it necessary to deal further with this issue.
Section 26 - Information given in Confidence
It is necessary to consider section 26 in some detail since it is clear from the submissions of all parties that they regard the issue of confidentiality in relation to these records as a matter of key importance in this review. At this point, also, it is appropriate to note that the Hospital (in common with other hospitals and health boards) signed a confidentiality agreement with the Inquiry which covered information and documentation exchanged between the Hospital and the Inquiry.
Before looking at the application of the section 26 exemption, it is necessary to apply section 26(2) to the records because the exemption does not apply where the records fall within section 26(2).
Section 26(2) states:
"(2) Subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, a public body or a person who is providing a service for a public body under a contract for services) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services."
My Office drew the Hospital's attention to the provisions of section 26(2) and expressed the view that, with the exception of correspondence from the Inquiry itself and any correspondence from a third party which is not a public body, the records were prepared for the Inquiry as part of the performance of the normal duties and functions of Hospital staff. The Hospital has not disputed this.
While I accept that involvement in the Inquiry process would not be part of the routine work of many Hospital staff, I am satisfied that one of the functions of staff, especially senior staff and those providing advice or assistance under a contract for services, is to represent the Hospital's position when engaging with Government, public bodies, the courts, tribunals, inquiries or other agencies concerned with matters relating to the business of the Hospital. The situation might well be different if an individual staff member and his or her legal team were involved in the preparation of these records in circumstances such as those described in my findings in Case No. 00528 - Mr John Burns and the North Eastern Health Board. In that case I found that certain records, containing the input of an individual doctor and his legal team into settlement agreements between the doctor and his employer, could not be regarded as having been prepared by him as a member of staff in the course of the performance of his duties. In the current case, the Hospital has not identified any records which were prepared by staff acting in a personal capacity outside of, or separate to, the performance of their functions as members of staff of the Hospital. However, where I consider that information in a record could be held to be the personal information of an individual, I deal with it below in the context of section 28.
My Office put it to the Hospital that any duty of confidence in this case, should it exist, would be owed to the Inquiry itself except in the case of records involving third parties who are neither on the staff of, nor providing services to, a public body. Whilst the Hospital has not said that it disagrees with this position, there is no indication in its latest submissions that, in arguing that "an obligation of confidence" remains, it differentiates between the "third party" records and the records prepared by or on behalf of public bodies.
In summary, I find that in order for section 26(1) to apply, any duty of confidence which may be owed by the Hospital, in respect of records which it has prepared, must be owed to a person other than a public body or a member of its staff or a person providing a service for it under a contract for services.
Section 26(1)(b) This provides that " [s]ubject to the provisions of this section, a head shall refuse to grant a request under section 7 if ...(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment ... or otherwise by law."
Given that section 26(1)(a) applies only to information given to a public body, section 26(1)(b) would appear to be the provision most relevant to the majority of the records, being records given by the Hospital to the Inquiry. What follows refers primarily to records created by or on behalf of the Hospital as opposed to records held by it but created by third parties. I address the latter category later in this decision.
It is important to note that this exemption applies only where disclosure of information would constitute a breach of a duty of confidence. For there to be a breach of a duty of confidence, one would expect to be able to identify a person in respect of whom the breach has occurred and who, as a consequence, would be in a position to sustain an action for breach of that duty. I take the view that section 26(1)(b) operates to protect the interests of the party to whom the duty of confidence is owed by the public body, the subject of the FOI request.
The overall scheme of the FOI Act suggests that, as a general proposition, section 26 is not intended to protect the confidentiality interests of public bodies. My decision in Case No. 000528 (Mr John Burns and the North Eastern Health Board - see www.oic.ie) identifies the various exemptions in the FOI Act, and the interests which they were designed to protect, in support of the view that the protection of section 26 is directed at entities other than public bodies; or, at least, the provision will protect the interests of a public body only where those interests co-incide with other interests which require to be protected. Accordingly, I now deal with section 26(1)(b) primarily in terms of the Hospital's relationship with the Inquiry. For the purposes of this aspect of the review, it must be established that a duty of confidence exists vis à vis the Inquiry or its sole member or other third party and, if so, that the disclosure of the records by the Hospital would, in the circumstances of this case, amount to a breach of such a duty of confidence.
Apart from the personal information of those involved, such as next of kin of deceased persons (which is not within the scope of this review), I consider that it is chiefly the interests of the Inquiry and its investigative process that the undertaking on confidentiality was designed to protect. I accept that, as a non-statutory Inquiry conducting its proceedings in private, the Inquiry had to decide how best to conduct its investigations within its terms of reference. It is clear from the Memorandum on Procedures drawn up by the Inquiry, and from the Chairman's Progress Reports on the work of the Inquiry published in October and November 2002, that the signing of the undertaking and the expectation of confidence was given considerable importance by the Inquiry.
While it was still in operation, the Inquiry stated that confidentiality was essential to its obtaining co-operation from hospitals and others; that disclosure of the records would lead to an erosion of this level of co-operation and that this would be detrimental to the Inquiry. Given that it has now ceased to exist and that its Chairman has confirmed the cessation in notices in the national press, it is difficult to see how, at this point in time, this level of protection of its work continues to be necessary.
In its submission of 14 April 2005, the Hospital, as I understand it, is arguing that the Inquiry has not actually come to an end by virtue of the fact that its report is still with the Tánaiste and its findings have not been revealed to the parties. It takes the view that the information in the records remains confidential. In my view, this line of argument would lead to a position whereby if, for any reason, the report was not put into the public domain at all, the Inquiry as an entity would continue indefinitely. That position is clearly untenable and I do not believe that the effect of the confidentiality agreement was intended to be open ended or permanent. Indeed, in its submission to my Office, the Inquiry itself envisaged that at least some of the records in question might fall to be released at a later stage. Given that the Inquiry has ceased to exist, I find that the undertakings given to it no longer have any force in relation to the records, the subject of my review. Notwithstanding this, in order to respond to some of the points made by the parties about confidentiality agreements in the context of this case, I include some brief comments on the issue.
You make the point that if, as a matter of public policy, a non-statutory inquiry can use a confidentiality agreement to "prevent" a public body from releasing records under FOI, this would have serious detrimental consequences for the FOI legislation. In my decision in the case of Mr John Burns and the North Eastern Health Board (Case No. 000528 referred to above), I set out my views on confidentiality agreements in an era of Freedom of Information. In recording some concerns about the use of confidentiality clauses by public bodies, I expressed the belief that, since the advent of FOI, some restrictions are imposed on the use of such confidentiality clauses. Although my finding in the present case is that the confidentiality agreement is no longer in force, I am satisfied that the use of the undertaking as to confidentiality was initiated as part of the Inquiry's procedures and that there is no question of the intent of the agreement being to circumvent the FOI Act. If I were to be satisfied that a public body had entered into an undertaking or guarantee of confidentiality with the deliberate purpose of circumventing the FOI Act and ousting its jurisdiction, this would represent a very significant issue in the consideration of whether the information ought to be released in the public interest. As I found in the decision cited above, each case has to be considered on its own facts and circumstances and any confidentiality agreements entered into by public bodies are subject to the implied terms which arise from the FOI Act. It seems to me that in the present case the process, which the confidentiality agreement was intended to protect, is at an end; thus, the records fall to be considered under the FOI Act without reference to the provisions of the agreement.
The duty of confidence potentially protected by section 26(1)(b) includes not just confidence based on an agreement or enactment but also a duty of confidence provided for "otherwise by law"; this latter category, it is generally accepted, includes a duty of confidence arising in equity. However in the circumstances of this case, where the entity to which a duty of confidence might be owed no longer exists, and where I have already found that the written confidentiality agreement no longer applies, I find that a duty of confidence based on equity does not apply. This finding takes account, amongst other things, of the fact that the now defunct Inquiry would not be in a position to sustain an action for breach of confidence.
In summary, I have concluded (a) that as far as records prepared by or on behalf of the Hospital are concerned, the exemption at section 26(1) can only apply where a duty of confidence is owed to a person other than a public body or a staff member of a public body or a person providing a service for it under a contract for services and (b) that an action for a breach of any duty of confidence (should it exist) cannot be taken by the Inquiry or its sole member since the Inquiry no longer exists. These conclusions relate in particular to the records identified in Schedules 1 and 2 which are the records of the Hospital's submission to the Inquiry along with the records of other correspondence between the Hospital and the Inquiry. With the possible exception of the small number of records identified below from Schedule 1 - with which I deal in the context of "Third Party Records" - I find that none of the records identified in Schedules 1 and 2 are exempt by reference to section 26(1) of the FOI Act.
Third Party Records
You will be aware that records are held by the Hospital of its correspondence with the Department of Health and Children (Request Item 3) and with "other relevant parties pertaining to the Dunne Inquiry" (Request Item 4). All of the records covered by Item 3 have now been released or agreed for release by the Hospital and the attached schedule reflects this position. In the interest of clarity I should say here that, in addition, a number of records included in the Hospital's formal submission to the Inquiry (Schedule 1) were prepared by the Department of Health and Children. I find that section 26(1) cannot apply to them by virtue of section 26(2).
In addition to the correspondence in Schedule 4, where I have found information concerning parties other than the Hospital and the Inquiry included in the records sent to the Inquiry with the Hospital's submissions, I have had to consider whether its disclosure might constitute a breach of a duty of confidence owed to these persons.
Correspondence with the Eastern Regional Health Authority (ERHA) and with Irish Hospitals
A substantial part of the Hospital's correspondence with persons other then the Inquiry comprises records of contacts between it and the former Eastern Regional Health Authority. There are also records (1.1 - 1.5 of Schedule 4) of correspondence between the Hospital and various other hospitals in this country which appears to have been exchanged in the period when the Hospital was preparing to make submissions to the Inquiry. I note that portions of the records identified in Schedule 4 do not pertain to the Inquiry but to a separate project, in which the Hospital and other public bodies engaged with the ERHA, and to other matters. Accordingly, my findings in this regard are restricted to those parts of the records set out in Schedule 4 as coming within the scope of this review.
Section 13(1) of the FOI Act provides for the editing of a record with the deletion of material which is exempt from release while retaining material which is not exempt from release. This approach is subject to the requirement that the edited record, intended to be released, is not misleading. Although I am generally not in favour of the "carving up" of records in order to release occasional sentences, I am satisfied that, in the case of minutes of meetings where items pertaining to the Inquiry are recorded separately from other business, it is feasible to consider the relevant extracts for release in compliance with section 13(1) of the Act.
As explained above, section 26(2) of the FOI Act operates to prevent the section 26(1) exemption from applying to these records which were prepared by a public body and which concern other public bodies. Therefore, because the ERHA and the Irish hospitals are public bodies, the Hospital cannot rely on section 26(1) to exempt these records.
Correspondence with Pharmaceutical Companies - records 4.1 - 4.20 (Schedule 4), response to question 13 and appendices 13 a - 13 e of formal submission to the Inquiry (Schedule 1) These records comprise both correspondence to the companies from the Hospital and to the Hospital from the companies. It is clear that these records were created for the purpose of responding to requests for information made by the Inquiry and I have already concluded that a duty of confidence can no longer be owed by the Hospital to the Inquiry. The question I must now address is whether the Hospital owes a duty of confidence to the companies involved.
Duty of Confidence
In the case of Mr. Michael Grange and the Department of Enterprise, Trade and Employment (Case No. 98179 at www.oic.ie), my predecessor adopted the following definition of the term "confidence", which is derived from the law relating to breach of duty of confidence: "A confidence is formed whenever one party ('the confider') imparts to another ('the confidant') private or secret matters on the express or implied understanding that the communication is for a restricted purpose." ("B" v. Brisbane North Regional Health Authority, (1994) 1 QAR 279, at paragraph 45, quoting from F. Gurry "Breach of Confidence" in P. Finn (Ed.) Essays in Equity; Law Book Company, 1985, p.111). I adopt this definition for the purposes of this review.
In responding to my Investigator's preliminary views of 17 June 2004, you state that information provided to the Inquiry by the Hospital cannot be categorised as "secret" merely because it is neither common knowledge nor trivial. I am aware, as you say, that much of the case law in this area relates to cases involving trade secrets or other financial type information. However, it is clearly envisaged in section 26 of the FOI Act that some material held by public bodies will have the quality of confidence about it where the information held relates to matters outside of trade or finance. By way of example, there is already a provision at section 27 of the FOI Act for a specific exemption in relation to records involving commercially sensitive information, including trade secrets.
In examining these records in the context of section 26(1)(b), in the absence of a contract or agreement between the Hospital and the companies, I must determine whether there is a duty of confidence based on equity ("or otherwise by law"). In order that an action for a breach of an equitable duty of confidence should succeed, three elements are normally required: (1) that the information has the necessary quality of confidence; (2) that it is imparted in circumstances imposing an obligation of confidence; (3) that there is unauthorised use to the detriment of the party communicating it (per Megarry J. in Coco v. A.N. Clarke Engineering Limited  F.S.R.415). These tests were adopted in the leading Irish case of House of Spring Gardens Limited v Point Blank Limited  I.R. 611.
I believe a decision as to whether a particular record has the necessary quality of confidence about it can only be taken by reference to its content and purpose. In this regard I note that my Investigator put it to the Hospital that, in her view, since the Inquiry has ceased to exist, the records in respect of which a duty of confidence might have been owed to the Inquiry would not now qualify for exemption under section 26. In response, the Hospital stated that it disagreed with this interpretation of the duty of confidence and stressed that one of the essential aspects in examining whether information is confidential is whether it is in the public domain. It appears that in its latest submission the Hospital was referring to all of the records as a class, and to its view that the Inquiry's process has not been finalised; it appears not to have been referring specifically to these particular records containing information concerning third parties, which are not public bodies, nor on whether their content has the necessary quality of confidence. However, the question raised in the submissions as to what is confidential information is indeed relevant.
The Hospital drew my attention to my predecessor's comments in his decision in the case of Mr Phelim McAleer of The Sunday Times and the Department of Justice Equality and Law Reform (Case 98058 - see www.oic.ie). That case concerned records relating to the drafting of the Solicitors (Amendment) Bill, 1998. The previous Commissioner found that certain records had the necessary quality of confidence in that the information contained in them "is not trite, has not been put into the public domain and appears to have had a restricted circulation within the Law Society" notwithstanding his observation that "[it] is not apparent to me that the whole of the contents of these records is particularly sensitive". In this regard it is clear that conclusions as to what records might have the necessary quality of confidence cannot be arrived at without a close examination of their content as well as consideration of the circumstances of their creation. The records in the Law Society case were stated in that decision to contain "the detailed views of the Law Society on the drafting of the legislation and on some of the policy issues underlying the legislation." The Commissioner found those particular records to be exempt, not under section 26(1)(b) of the Act, but under section 26(1)(a); having so found, he decided that the public interest would be better served by their release. A further record, which was also claimed to have been given in confidence by the Law Society, was found not to contain information given in confidence.
I consider, having examined the records at issue in the present case, and having regard to the context of their creation and their communication to the Inquiry, that they do not contain information having the necessary quality of confidence as defined above. Much of the correspondence refers to matter which is already in the public domain. For instance, press releases from hospitals and pharmaceutical companies together with media reports in 2004 made references to the supply of pituitary glands by Irish hospitals (including Our Lady's Hospital for Sick Children) to the pharmaceutical industry for use in the treatment of growth hormone deficiency. I am satisfied that, whilst such records were prepared and received on the understanding that the communication was for the purpose of furnishing information to the Inquiry for the purposes of its investigation into post mortem practices, neither party could have expected that their communications would remain confidential.
I refer to my earlier observations in the context of section 26(1)(b) where I expressed the view that, as a general proposition, section 26 is not intended to protect the interests of public bodies. What is involved here is communication between the Hospital and companies with whom it had arrangements relating to its work. The content of the correspondence relates to the establishment of the facts about those arrangements and does not extend to opinion or speculation.
Whilst a request by the letter writer that the content be kept confidential is no guarantee that the information has the necessary quality of confidence, or that confidentiality will be upheld under FOI, I note in this case that some but not all of the responses from a particular company to the Hospital requested that the correspondence would be treated as confidential. The information contained in the records does not relate in any potentially identifiable way to individual patients or their next of kin. I note that some of the records contain discussion as to whether information should be kept "strictly private and confidential"; however, it is clear that the Hospital gave no such assurances to the company concerned. Indeed, it appears that the company involved agreed that the Hospital was not precluded from using the factual content of the information supplied in dealing with replies to parents' queries and in its submissions to the Inquiry. In circumstances such as this, where one party seeks a guarantee of confidentiality from a public body in respect of what was, in effect, a business relationship, I consider that the giving of any such assurance would have been inappropriate in light of the general aim of the FOI Act to enable access "to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies". As the correspondence at issue was exchanged after the enactment of the FOI Act, I consider that the Hospital was correct in this instance in not giving assurances of confidentiality in respect of information received.
The content of these records is, for the most part, no more than a confirmation, for the benefit of the Hospital (whose records seemed deficient) of the nature of the relationship which had existed between the Hospital and the pharmaceutical companies. It is not tenable that the provision of this information, consisting mainly of what the Hospital must or should have known already, could have been provided in confidence. Neither is it tenable that the Hospital would require authorisation from the companies if it intended to make use of the information; after all, the "information" about the arrangements between them (if any existed) is as much the information of the Hospital as it is that of the particular companies. In these circumstances, it is difficult to envisage that any use of the information made by the Hospital could be seen as "unauthorised".
In this regard it is interesting to note that in finding that one of the Law Society's records in Case No. 98058, referred to above, did not qualify for exemption by virtue of section 26(1)(b), my predecessor commented that, in the High Court case of House of Spring Gardens (referred to above), Costello J in dealing with the elements normally required if a breach of confidence is to succeed "characterised the obligation of confidence which is based in equity as a duty to act in good faith and as a moral obligation." My predecessor went on to say that he "found it difficult to accept that, in this particular case, the release of the record by the Department would amount to 'unconscionable behaviour' on its part." I consider that this present case is also one in which there is no moral obligation on the part of the Hospital to protect the information given to it by the companies. The correspondence with the pharmaceutical companies does not disclose to the Hospital details of the companies' private affairs such as might impose, in certain circumstances, an obligation of confidence in relation to those details.
Correspondence with Others Apart from the pharmaceutical companies, the Hospital has identified and furnished to my Office copies of its correspondence with non-Irish hospitals (record 1.6 of Schedule 4) and overseas consultants (records 5.1 - 5.11 of Schedule 4). In addition, I have identified part of the responses to questions 7, appendix 7b and 11b in the Hospital's formal submission to the Inquiry (Schedule 1) as potentially concerning persons other than the Inquiry or public bodies. These records comprise correspondence or accounts of contacts between the Hospital and various institutions (which are not public bodies under the FOI Acts) in the context of its attempts to ascertain the facts about past procedures and practices to which the Inquiry's queries related. I consider that the content of these records is either already in the public domain or does not contain information with the necessary quality of confidence for the reasons stated above. *********** In the light of the above, my finding is (a) that these records do not contain information which has the necessary quality of confidence about it; (b) that the information was not imparted in circumstances imposing an obligation of confidence and (c) that use of the information by the Hospital could not be regarded as unauthorised. Accordingly, my finding is that release of these records by the Hospital would not constitute a breach of a duty of confidence and that they are not exempt under section 26(1)(b) of the FOI Act.
I have already found that the section 26(1)(b) exemption does not apply to those "third party records" which were created other than by, or on behalf of, a public body. Although the Hospital has not explicitly stated in its decision that it was relying on the section 26(1)(a) exemption, it has addressed it in its submissions to my Office and, accordingly, I now examine these records in the context of section 26(1)(a). The records at issue comprise those identified above which contain information given to the Hospital by the Inquiry, by pharmaceutical companies or by other individuals or institutions in Ireland or abroad.
Section 26(1)(a) of the Act provides that a public body shall refuse a request if -
However, information given in confidence, and to which section 26(1)(a) applies, must be released if the public interest would on balance be better served by granting than by refusing to grant access to the record.
Information given by the InquirySince the information at issue in this provision must be "given to a public body in confidence...", and the Inquiry is not prescribed as a public body for the purposes of the FOI Acts, this provision is relevant potentially only to information in records provided by the Inquiry or by third parties to the Hospital. The Hospital appears to be arguing that all of the withheld records, irrespective of content, have the necessary quality of confidence by virtue of a mutual expectation of confidence and of the Memorandum on Procedures drawn up by the Chairman of the Inquiry which provided for an undertaking as to confidentiality to be entered into by the participants.
Having regard to my findings above in relation to section 26(1)(b) and the fact that the Inquiry has ceased to exist, I consider that neither the Hospital nor the Chairman and sole member of the Inquiry can reasonably have an understanding or expectation that correspondence sent to the Hospital by the Inquiry will continue to be treated as confidential in present circumstances. Indeed, much of the Inquiry's correspondence relates to procedural or administrative matters, to deadlines, to published items and to other relatively routine matters. Even if I was to find that some of the content had been given in confidence at the time it was conveyed to the Hospital, I consider that the second and third requirements of section 26(1)(a) could not possibly be met at this stage since the supply of information to public bodies from the Inquiry, or even from any future similar inquiries, could not be prejudiced by the release of records about the conduct of the Inquiry at a time when it had concluded. In other words, any inquiry would have to engage with public bodies insofar as its terms of reference included investigation of their practices.
Information from pharmaceutical companies and others
In respect of the records which contain information given to the Hospital by pharmaceutical companies and by hospitals and consultants abroad, I rely on the reasons given under section 26(1)(b) above and find that the information was not given in confidence to the Hospital. My finding is that the information which I have already found not to have the necessary quality of confidence to qualify for exemption under section 26(1)(b) does not meet the first requirement of section 26(1)(a) either. Further tests to be satisfied in section 26 (1)(a) are that disclosure would be likely to prejudice the companies, or "other persons", from giving further similar information and that it is of importance to the public bodies to receive such information. It seems to me that the companies involved, or "other persons" holding similar information, would be anxious to clarify or explain their past role in issues relating to post mortem procedures if for no other reason than to prevent any perceived damage to their reputations. However, having found that these records do not meet the first requirement of section 26(1)(a), it is not necessary for me to apply the remaining tests. Thus, I find that these records are not exempt under section 26(1)(a) of the FOI Act.
In its decision, the Hospital cited a number of other exemptions which it relied upon. I now address whether the Hospital is justified in refusing access to the records under any of these.
Section 20 - deliberations of public bodies
Section 20 of the FOI Act, 1997 (as amended) provides:
"(1) A head may refuse to grant a request under section 7 if the record concerned contains matter relating to the deliberative processes of a public body (including opinions, advice, recommendations and the results of consultations, considered by the body or a member of the body or of the staff of the body for the purposes of those processes)."
The Hospital states in its lengthy submissions on section 20 that its correspondence with the Inquiry and with others pertains to the deliberative process carried out "in considering its continual involvement with the inquiry". It says that all of the records not already released disclose deliberation by the Hospital about matters which are not purely administrative. It argues that the records relate to matters which are ongoing in that no final decision has been made on them. In its latest submission, the Hospital puts forward the view that the deliberative process cannot be said to have ended since the findings of the Inquiry have not been revealed. What I must determine, therefore, is whether the submissions of the Hospital to the Inquiry and the contacts between them and others include matter to which section 20 can be applied. Clearly, section 20 does not cover the deliberations of the Inquiry which is not a public body for FOI purposes.
Deliberative processes involve the consideration of various materials with a view to making a decision on a particular matter. As regards records disclosing the substantive submissions to the Inquiry, I consider that these records relate to positions adopted by the Hospital following its deliberations as opposed to material disclosing the internal thinking process within the Hospital or the weighing up of options. Certain of the records contain accounts of the consideration of issues relating to the Inquiry by participants in meetings chaired by the ERHA; I do not find that opinions, advice or recommendations contributing toward the deliberative process are disclosed in these records. Although there is material relating to the difficulties that the Hospital and others had with some of the Inquiry's terms of reference and its procedures, I am unable to identify any record which discloses the Hospital's deliberative processes or the weighing up of options as to how it might engage with the Inquiry.
As I have said earlier in this decision, I do not accept that the "end" of the Inquiry is in any way dependent on whether the Tánaiste decides to publish the report of the Inquiry. The Hospital's argument on this point seems to imply that section 20 has the potential to protect the deliberative processes of bodies which are not public bodies and this, clearly, is not the case. It may happen that the Hospital will have to engage in its own deliberative process following the publication of the Inquiry's report, but my decision is concerned only with the records already created which are relevant to what is now a historic phase in the process.
I do not believe that records, comprising procedural type correspondence with the Inquiry or with third parties and information already in the public domain, could be held to form part of the deliberative processes of a public body. Furthermore, section 20(2)(b) of the FOI Act excludes factual information from exemption under section 20(1). Accordingly, much of the Hospital's responses to the Inquiry's queries which comprise statistical, organisational and other factual content are records to which the section 20 exemption cannot apply. The Hospital's submissions fail to address these exclusions.
The FOI Act clearly envisages that there will be cases in which disclosure of the details of a public body's deliberations - whether before or, in some cases, after a decision based on these deliberations has been made - would be contrary to the public interest. However, that is not to say that such disclosure is always, as a matter of principle, against the public interest. I have considered carefully the Hospital's detailed submissions on the public interest. I note, however, that they appear to have been prepared on the premise that section 20 requires that disclosure of a record must be found to be contrary to the public interest before the exemption can apply. This was the situation prior to the Freedom of Information (Amendment) Act, 2003; the provision now is that consideration of the public interest under section 20(3) requires to be undertaken only where the record has been found to be exempt under section 20(1). Thus, if I had found that some of the records came within the scope of section 20(1), section 20(3) would require that I consider whether the public interest would, on balance, be better served by granting than by refusing the request.
There is a very strong public interest in ensuring the maximum transparency in regard to the manner in which public bodies conduct their business on behalf of the public; this is as true in the sensitive area of the post mortem practices of hospitals as it is in the area of, for example, how local authorities manage their housing responsibilities. In the present case, there is a public interest in enabling the Hospital conduct its business effectively and in allowing it the space to think out its response to the Inquiry. However, once a decision has been made to proceed with a proposed action (in this case the provision by the Hospital of a response to the Inquiry's queries), the need to withhold information on the matter weakens considerably. In addition, the Hospital's argument that the ultimate public interest lies in the success of the Inquiry has lost its force since the conclusion of the Inquiry.
Given the content of the records, the passage of time since their creation, the fact that the Inquiry has concluded and the very substantial public interest served by transparency in relation to all of the issues arising, I am satisfied that were it necessary to apply the public interest test provided for at section 20(3), I would find that the public interest would, on balance, be better served by granting than by refusing the FOI request.
Overall, I find that the Hospital has failed to establish a basis for exemption under section 20(1).
Section 21 (1) (a) - functions of public bodies
The Hospital cited section 21(1)(a) in its refusal of access to some of the records. However, apart from asserting that release of the records (including those involving its contacts with the ERHA as described above) would prejudice the effectiveness of the Hospital, it has not made submissions addressing this exemption.
Section 21 of the FOI Act provides: "(1) A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to-(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof,
I adopt the approach of my predecessor to this exemption and take the view that, in arriving at a decision to claim a section 21 exemption, a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The test of whether the expectation is reasonable is not concerned with the question of probabilities or possibilities. It is concerned simply with whether or not the decision maker's expectation is reasonable.
Section 21(1)(a) cannot apply to the Inquiry's own investigations since it is not a public body under the FOI Act. I do not accept that the collating of information by Hospital staff, in order to respond to the requests for information and queries posed by the Inquiry, would come within the type of "tests, examinations, investigations, inquiries or audits conducted" envisaged by this exemption. It seems to me that extracts from the minutes of meetings with the ERHA and contacts with other hospitals reflect necessary liaison and co-ordination between public bodies rather than the conduct of any investigations. I consider that the only records, which might relate in any direct way to investigations or inquiries the Hospital or any other public body had to conduct or refer to in order to respond to the Inquiry, are those concerning pharmaceutical companies. Having regard to the content of such records which I have described earlier in the context of section 26, I find it difficult to see how their release could prejudice the effectiveness of any investigations even if these were ongoing. I do not consider that harm to the functions covered by the section 21(1)(a) exemption is likely to occur as a result of the release of the records in this case; nor has the Hospital made any specific case that such harm could reasonably be expected to occur.
Having found that section 21(1) does not apply to exempt these records, it is unnecessary to consider the public interest override provided for in section 21(2).
Section 23(1)(a)(iv) - law enforcement/administration
Section 23(1)(a)(iv) of the FOI Act provides that:
" A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to
(a) prejudice or impair -
(iv) the fairness of (...) civil proceedings in a court or other tribunal"
The Hospital's stated position is that this is a relevant exemption by virtue of the fact that civil proceedings are now in being. It argues that parties who are required to reveal records on foot of FOI requests will be placed at a potential disadvantage as against those who have no such obligation. The Hospital stresses that, owing to its non-statutory status, parties to the Inquiry are not protected by any degree of immunity and, therefore, any views expressed in the records may be used in civil proceedings.
The context in which this provision tends to be invoked by a public body is one in which a legal action, involving the public body, is pending or contemplated. A public body may seek to withhold relevant documentation on the grounds that a requirement to disclose the detail of its proposed conduct of the case, in the absence of any such requirement in relation to the other party, would be manifestly unfair. Although the Hospital does say that individuals are taking proceedings against it arising from matters relating to post mortem practices, no records have been identified in the context of the "harm" envisaged; nor is it clear to me that any particular legal strategy, the disclosure of which might result in prejudice or unfairness, is evident from the records.
I consider that the argument necessary to sustain a claim that the records are exempt under section 23(1)(a)(iv) has not been made out and I find accordingly.
Although the Hospital has not made any reference to it, I consider it appropriate to examine the records in the context of section 28 of the Act. This section provides that a decision maker shall refuse to grant a request where access to the record would involve the disclosure of personal information (including personal information relating to a deceased individual) relating to persons other than the requester. This exemption is subject to a limited number of exceptions. In the course of the review, you agreed that personal information relating to deceased persons and/or their next of kin did not fall within the scope of your request.
I consider that the majority of the records do not disclose personal information. Accordingly, section 28 does not apply to them. However, in examining the records, I found that a small number of records provided by the Hospital contain some details which, in the circumstances, could be deemed to be personal information. In the response to Question 2 (Schedule 1) from the Inquiry, there is a possibility that the individuals involved could be identifiable from a list of dates taken together with other information. Accordingly, I direct that all dates of death in page 5 of Question 2 be deleted from the copies of the record to be released by the Hospital.
Furthermore, the Hospital's response to Question 16 (Schedule 1) contains information about individuals which would, in the ordinary course of events, be known only to those individuals, their families or friends. For this reason, I direct that paragraph 2 of page 14 of the Question 16 response be deleted from the copy to be released by the Hospital.
I make these directions (a) on the basis that you have stated that you do not wish to have access to the medical records of individuals and (b) having regard to the fact that I can find no public interest in your having access to the personal information of individuals which outweighs the public interest that the right to privacy of those individuals should be upheld.
Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, (as amended), I hereby vary the decision of the Hospital as follows:
Schedule 1 Record 1 (submission and appendices with the exception of those parts identified in the attached schedule)
Schedule 2 Records 5, 6, 9, 11, 12, 15, 17 - 23, 27 32, 33 and 35
Schedule 3 Enclosure to record 8
Schedule 4 Records 1.1-1.6, 2.18, 2.19, 2.34 - 2.43, 2.44, 2.45, 2.48 -2.49, 2.85 - 2.89, 2.90, 2.92 - 2.96, 4.1 - 4.14, 4.15 - 4.20 and 5.1 - 5.11 in full; records 2.22, 2.52 - 2.79, 2.108 - 2.125 in part as detailed in the schedule attached.
Schedule 1 column 4 of page 5 of response to Question 2; paragraph 2 of page 14 of response to Question 16.
The attached schedules summarise my findings.
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 that decision. Such an appeal must be initiated not later than eight weeks from the date of this letter.