Case 98078 - Mr. Martin Wall, The Sunday Tribune newspaper and the Department of Health and Children

Records relating to the expenditure of health boards and voluntary hospitals - whether related to deliberative process - section 20(1) - whether significant adverse effect on functions relating to management - section 21(1)(b) - whether disclosure of positions to be taken in negotiations - section 21(1)(c) - whether prejudice to administration of any law - section 23(1)(a)(ii) - whether information given in confidence - section 26 - whether information commercially sensitive - section 27(1) - personal information - section 28 - whether financial interests of the State affected - section 31 - the public interest.

Case Summary

Facts

The requester sought various records relating to expenditure trends /outcomes for the health boards and voluntary hospitals. The Department refused access to the records and argued in its submission to the Commissioner that the records were exempt under sections 20(1)(a) and (b), 21(1)(b) and (c), 23(1)(a)(ii), 26, 27(1), 28 and 31. On inquiry the Commissioner established that a great deal of the information in the records as it related to health boards had been released by the health boards into the public domain.

Decision

The Commissioner decided that a limited amount of information relating to proposals made to the Department and which the Department might be considering with a view to further action on its part was exempt under section 20. He found that the bulk of the records contained information falling within section 20(2)(b) or (d) and therefore did not fall to be exempted under section 20. He decided that the public interest test in section 20 was stronger than the public interest test in other sections of the Act and that the Department had taken a narrow view of the public interest in the case.

The Commissioner decided that a general prediction without any supporting evidence is not sufficient to satisfy the requirement under section 21(1)(b) that disclosure could reasonably be expected to have a significant adverse effect on the performance by the Department of any of its functions relating to management. The Commissioner also found that the only information in the records that would be exempt under section 21(1)(c) would be proposal-type information. The Commissioner reviewed the issue of the public interest under section 21(2) and found that the negative outcomes predicted by the Department would not necessarily occur with the release of factual information.

The Commissioner decided that the Department had not shown how the release of the records would actually prejudice or impair the administration of the law and found that the records were not exempt under section 23(1)(a)(ii).

He also found that, by virtue of section 26(2), the health boards could not rely on section 26(1) and found that the four requirements of section 26(1)(a) had not been met in this case.

The Commissioner held that information relating to proposed actions being contemplated by the voluntary hospitals might fall within section 27(1)(c) and found that the public interest would not, on balance, be better served by granting than by refusing to grant release of the proposal type information. On the basis of the information before him the rest of the information contained in the records did not fall within section 27(1)(b) or (c).

He found that a record which contained information regarding the treatment of a patient was personal information about that patient and that the name of that patient and hospital should be deleted under section 28. The requester had consented to the deletion of personal information relating to patients and staff.

The Commissioner decided that the financial interests of the State would not be adversely affected by the release of the records, that the expectations of the Department were not reasonable on that point and that section 31 did not apply in the case.

Date of Decision: 31.03.1999

DECISION

Background:

Mr Wall of the Sunday Tribune made three requests under the Freedom of Information Act, 1997 (FOI Act) to the Department of Health and Children (the Department) which were received by the Department on 19 June 1998.

His first request was for "Most recent report of Finance Unit to Management Advisory Committee or Department of Finance on expenditure trends/outcomes so far this year for hospital services".

His second request was for "Correspondence from Department of Health to each health board/ voluntary hospital in response to their most recent financial report submitted to Department of Health".

His third request was for "Details of expenditure trends/ financial reports for each health board/voluntary hospital as submitted most recently to the Department of Health".

Each month the health boards and voluntary hospitals submit budgetary reports to the Department. These reports contain information on finance, personnel and activity within the agency concerned. The budget details and budget variances are included in these reports. The reports are accompanied by a commentary from the CEO of the relevant agency. The CEO commentary includes references to reasons for budget variance, details of agency activity and current and future strategies. These reports, known as Integrated Management Reports (IMRs), and the accompanying CEO commentaries are submitted by the health boards as part of the reporting procedure operated by the Department under the Health (Amendment) (No. 3) Act, 1996. Under the 1996 Act the Minister for Health and Children determines the maximum amount of net expenditure that may be incurred by a health board in a financial year. The health board must then adopt a service plan including a statement of services to be provided for the year which is consistent with the financial limits determined by the Minister. The Minister also specifies the amount of indebtedness that may be incurred by the health board. The CEO of the health board must inform the Minister and the board when s/he is of the opinion that a decision or proposed decision would result in expenditure exceeding the amount determined by the Minister or the amount of indebtedness specified. Under the Act a CEO must furnish the Minister with such information as the Minister may require. The Department receives IMRs on an administrative basis from the voluntary hospitals. The Department uses the IMRs and the commentaries to monitor the progress of the health agencies.

The Department handled all three requests together and made an initial decision under the FOI Act on 17 July 1998. In its initial decision the Department held that the records sought in all three requests were exempt under section 20(1)(a) and (b), section 21(1)(b) and (c) and 23(1)(a)(ii). Mr Wall applied for internal review of this decision. The decision on internal review was that the records were exempt under sections 20(1)(a) and (b), 21(1)(b) and (c) and 23(1)(a)(ii). In addition the Department argued in a general way that the information provided by voluntary agencies was confidential and that disclosure would be premature. Mr Wall then applied to my Office for a review of the decision of the Department. This application was received by me on 3 September 1998.

This Office sought submissions from the Department and from Mr Wall in relation to this matter. Both parties made detailed submissions. In its submission, the Department invoked sections 26, 27(1), 28 and 31 in addition to the sections relied upon in its initial decision and internal review. Officials of my Office met with the Department to try to establish if, on reconsideration, the Department might be prepared to release some of the records. However, the Department's position was that it would not agree to the release of any records even those the content of which was already in the public domain.

This Office consulted with the voluntary hospitals relevant to the request. Twenty-nine voluntary hospitals were notified of the review being conducted and were informed that the Department had indicated that the records may fall within section 27 of the Act. Each hospital was given the opportunity to make a submission to this Office. Officials from my Office met representatives of some of the voluntary hospitals to seek further information. Since Mr Wall made his initial requests to the Department, the health boards have become public bodies for the purposes of the FOI Act (21 October 1998). Contact was made with all the health boards to establish the nature of the information which they make available to the press or the public. Most health boards make their finance reports, which are submitted to the board members, publicly available.

The 288 records in this case fall into five main categories.

1. A letter from the Department of Health and Children to the Department of Finance in relation to the return of health expenditure for the first quarter of 1998.
2. Several letters from the Department of Health and Children to some health boards and voluntary hospitals in relation to the IMRs for April 1998.
3. IMRs from the health boards and voluntary hospitals for April 1998.
4. Chief Executive Officers' commentaries on the IMRs submitted.
5. A Report to the Management Advisory Committee of the Department with a summary of health board expenditure for April 1998.

Having reviewed the records in this case, I find that Record number 154 is an internal memorandum prepared within the Department for administrative purposes and which does not fall within the terms of Mr Wall's requests.

Submissions

In its submission to this Office and during two meetings held with representatives of the Department, it was stressed that the health service is the most volatile area of government spending. The costs of new technology and drugs were significant. It was argued that the financial year of each health agency is a unit and the records reflect only a snapshot of a particular point in time. The Department stated that there was a continually ongoing deliberative process and that an overall view of the performance of an agency could not be taken until the end of the year. It stated that the information provided to it by the agencies was provided on the basis that it was confidential. It argued that the requirement for openness and accountability was met by the publication every year of the accounts of the agencies. It was submitted that the health services had the largest number of employees of any part of the public sector and where problems emerged for agencies in dealing with pay awards, the Department tries to avoid the matter entering the public arena pending a resolution of the issue.

The Department made the following arguments in relation to the Integrated Management Reporting system. "This Integrated Management Reporting (I.M.R.) system, in order to be successful,needs to operate in an environment of confidentiality and mutual trust between theagencies and the Department. This allows agencies to be frank and open with theDepartment in relation to any particular problem which exists within the agency, inthe complete knowledge that this information will not be used by the media to createad-hoc comparisons of service provision between different agencies. In addition, itwill allow agencies the time necessary to explore all options, in conjunction with theDepartment where necessary, and seek a solution to any difficulties they may beexperiencing. However, in a situation where these difficulties are prematurelyreleased to the media, this may result in agencies having to concentrate more onperipheral issues such as correcting inaccurate media commentary on their positionsat a snapshot in time, to the detriment of the problem solving process."

The Department made specific arguments in relation to each of the exemptions which it invoked and I deal with these, in detail, later in the decision.

Mr Wall argued that all of the eight health boards regularly produce breakdowns of their financial position and these details are supplied to the media. If such information is published regularly regarding the health boards, he argued that there could not be a reason for withholding it in relation to the voluntary hospitals. He also argued that the Department did not take account of the Health (Amendment) Act, 1996 which, he said, banned health agencies from overspending. He said that if hospitals were over-budget mid-term they would need to take corrective measures and that the public should be informed of any reductions in hospital and health services which were being considered rather than being presented with a fait accompli at a later stage.

Mr Wall also argued that his three requests should have been considered separately. I am of the view that given the fact that his requests were received by the Department at the same time and concerned records relating to the same broad area, the Department was not obliged to issue separate decisions in relation to each request, provided however that each record requested was considered by the Department.

Findings

Before dealing with the detailed arguments put forward by the Department, I would like to make a number of observations on the general approach which it adopted. In the course of the review it has become clear to me that what the Department is seeking in this case is an exemption in relation to all of its correspondence with the health boards and the voluntary hospitals, regardless of content. It has continued to press this point notwithstanding the fact that much of the information contained in these records had already been made public by the health boards at the date of the request.

Furthermore, it has apparently not been able to accept that at least some of the material in question must have lost its sensitivity in the interval since the request was made, although it would be obvious to any reasonable person that this must be so. By any measure, the position adopted by the Department is an extreme one and seems to amount to an assertion that the Department must be allowed to administer the health service with whatever degree of secrecy it sees fit. Needless to say, I have not found it possible, by reference to the FOI Act, to accept this proposition.

I accept that certain parts of some of the records requested in this case may legitimately be withheld under the Act. In its submission to me the Department identified examples of information which it thought came particularly within specific exemptions in the Act. However, it made it clear that these were examples and it indicated that there might very well be other information of the same kind scattered throughout the records. I can only suggest that if the Department does not choose, for whatever reason, to identify all parts of records which are of particular concern to it then, having regard to the provisions of section 34(12)(b) of the FOI Act, it can have no legitimate cause for complaint if I fail to uphold its decision to refuse access.

As a final observation before moving on to my findings, I should say that I am conscious that my decision could give rise to a practical problem for the Department. If regular requests of this nature are made, the Department might need to examine in detail every IMR and attachments, perhaps consult with the relevant health agency, and delete exempt material before releasing the records under the Freedom of Information Act. This could be an onerous task bearing in mind the number of IMRs and the fact that they are created monthly. However on the view I take of the matter, such a problem need not arise, or at least it can be greatly alleviated, by ensuring that material which may be exempt is identified by the authors of the IMRs and recorded in a designated section of the IMR, allowing routine information to be released on request. The Department may wish to consider issuing guidelines to Health Boards and voluntary hospitals in this regard.

Having made these observations I will now deal with the detailed arguments put forward by the Department and by Mr Wall.

The Department relied on the following sections of the Act: sections 20(1)(a)(b), 21(1)(b)(c), 23(1)(a)(ii), 26, 27(1), 28 and 31. I deal with each exemption in turn, below.

Section 20

Section 20(1) provides as follows:

20.(1) A head may refuse to grant a request under section 7

a) if the record concerned contains matter relating to the deliberative processes of the public body concerned (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and

b) the granting of the request would, in the opinion of the head, be contrary to the public interest,

and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make. The Department states that its role in the deliberative process is to ensure that all options for the allocation of resources have been considered and that a problem as originally anticipated has not been overtaken by the constantly changing circumstances of the health services. The Department relies on the IMRs from the agencies in this deliberative process. To release the information would be to expose and impede the deliberative process. The public interest in maintaining the effective and efficient delivery of the health service outweighs the general public interest in disclosure. The Department's view is that release would contaminate the negotiation and decision making process. It argues that media comments would tend to favour agencies who are failing to manage their affairs efficiently. The Department also argues that the exceptions in section 20(2)(b) and (d) do not apply to the commentaries which accompany the IMRs. Section 20(2) states as follows:

20(2)(1) does not apply to a record if and in so far as it contains ..... b) factual (including statistical) information and analyses thereof, ..... d) a report of an investigation or analysis of the performance, efficiency or effectiveness of a public body in relation to the functions generally or a particular function of the body...

The Department stated that the commentary attached to each IMR explained the reasons for the variances from budget of the relevant health agency and the implications thereof and whereas an IMR may contain factual information, the information is an integral part of the deliberative process.

Before dealing with the application of section 20(1), I should first of all point out that the bulk of the records in this case contain factual information and analyses thereof within the meaning of section 20(2)(b) and therefore do not fall to be exempted under section 20 at all. Reports of actual expenditure, amount of budget variance, steps already taken to keep within budget, changes which have occurred to cause the increased expenditure etc. are all factual information. The only parts of the records which are not factual information are the records or parts of records which reflect proposed courses of action being considered by agencies or the Department. Correspondence from the Department warning agencies that they must keep to budget or must take measures to ensure budget allocations are not exceeded do not, in my opinion, relate to the deliberative process. They relate to the administrative or regulatory role of the Department in overseeing the expenditure pursuant to allocation. Most of what is contained in the reports to the MAC and the letter to the Department of Finance fall within either paragraph (b) or paragraph (d) and cannot be exempted under section 20.

In order to successfully invoke section 20, two requirements must be met; the record must contain material relating to the deliberative processes of the public body and the disclosure must be contrary to the public interest. Generally speaking, in examining the IMRs, the Department is not engaged in a deliberative process, although it is possible that an issue will surface in an IMR which might trigger a deliberative process. The Department's role in this case appears to be a monitoring or supervisory one. The Department acts to ensure that the agencies are operating and delivering services within budget. There is little or no evidence in the records supplied of any weighing up or evaluation of competing options by the Department. Where the records reflect a deliberative process they relate to options or proposals being considered by CEOs of the hospitals or the health boards for bringing their budgets back into line. (For the purpose of this decision, I will refer to such material as 'proposal-type' information). Section 20 refers to "deliberative processes of the public body concerned". I am of the opinion that the records must relate to the deliberative processes of the Department in order to fall within the first requirement of section 20 referred to above. To a certain extent proposal-type information submitted to the Department may be considered by the Department for the purposes of deciding whether to make a further allocation to the agency or to take other courses of action and to that extent such information can be said to relate to the deliberative process of the Department.

However, even where parts of these records fall within section 20(1)(a) in the sense that they contain proposal-type information used in the Department's deliberations, the Department must also show that it would be contrary to the public interest to release the information. In this respect, the Department argues that the public interest would not be served by the release of information which could give rise to misleading conclusions. It argues that the ultimate success of the deliberative process would be adversely affected by the premature release of the information. It also states that the public interest in maintaining the effective and efficient delivery of health services outweighs the public interest in ad hoc disclosure. It states that media comment arising from disclosure would tend to favour those health agencies who are aggrieved by the Department's decisions and/or are failing to manage their affairs efficiently.

The Department seems to have taken a mistaken approach to the public interest test in section 20. Section 20 requires the public body to show that release would be contrary to the public interest. This is a stronger public interest test than the test in other sections of the Act which requires that on balance the public interest would be better served by granting than by refusing the release. I am not satisfied that the Department has shown that release in this case would be against the public interest.

The Department has taken a narrow view of the public interest. In the field of health care there is a number of issues to be considered in relation to the public interest. The primary aim of the health care services is to meet the health needs of the community. While this must be done in a planned and cost efficient manner, the public interest is not limited to matters of cost efficiency alone. Where cutbacks of major importance to the provision of health care services are being made, there is also a public interest in the community knowing what these may be. The Department and the health agencies are administering the health services on behalf of the community. There is a public interest in the community knowing as much about how the services are being administered as is consistent with the provision of an efficient and effective service. This does not mean that the public has the right to know every proposal that is made. Indeed, there is a strong argument in favour of protecting proposals from release at an early stage in order to allow the public body to properly consider the matter. However, once the decision to proceed with any proposed action is taken, the need to withhold the release of the information weakens. Furthermore the argument advanced that the information once released will be used (or abused) in some particular way or misinterpreted or will not be properly understood reflects an attitude more akin to that which prevailed in an era dominated by the Official Secrets Act rather than one governed by the FOI Act. The motives of requesters for seeking information have to be disregarded in dealing with a request (section 7(4) of the Act)

As I have indicated above, I do not accept that factual information in these records is exempt, having regard to section 20(2)(b). It follows that I do not need to consider the question of whether, for the purposes of section 20(1)(b), the release of such information would be against the public interest. However, as will be apparent from the terms in which it couched its argument, the Department believes that release of the factual information in these records is not in the public interest. I wish to make it clear that I do not accept this argument. Of course, the release of factual information may not be without consequences. In the case of an informed reader, some of the information in these records is bound to give an insight into specific problems facing particular health boards or hospitals. This may prompt questions as to how these problems are being tackled. One can sympathise with the desire of managers to do their jobs without, as they might see it, the "distraction" of dealing with enquiries from the media or other sources. However, a commitment to greater openness carries with it the burden of dealing with the increased scrutiny that openness may invite. It follows that the possibility of such a burden arising is not a factor which might indicate that the public interest is not served by release in this case.

Further, the Department argues that the release of the information in the IMRs will have serious negative consequences on the Department's deliberative process and on the delivery of health services. I am of the view that such negative consequences are not at all apparent. Investigations by my Office reveal that much of the information as it relates to health boards is already in the public domain without the consequences envisaged by the Department occurring. I find that, generally speaking, it would not be contrary to the public interest to release the contents of the IMRs. However, I accept that certain information concerning future proposals may qualify for exemption.

As I indicated earlier, the Department drew on certain records to illustrate its arguments on the harm which would be caused by release in this case. For example, it claimed that disclosure of the contents of part of one particular record would lead to confusion and unnecessary debate resulting from disclosure of the possible courses of actions mentioned in that record, including possible bed closures. It says that this is not in the public interest. It argues that if the deliberative process had taken place in an atmosphere of public concern and debate the right outcome might not be achieved.

The record in question is a page of a report from a Health Board. A review of the financial report of the Health Board which issued to its board members and is in the public domain reveals that very similar (although slightly less detailed) information has already been released by the health board. In the circumstances I have serious doubts that the argument for protecting proposals from release at an early stage can apply in this case. I considered whether I should ask the Department to explain specifically how the greater detail contained in the record, over and above the matter released by the Health Board, would have the consequences which it envisaged. However, I decided not to do this because it is evident to me that, with the passage of time, whatever harm might have been occasioned by the release of this information will not now occur. I am satisfied that, at this stage, it would not be against the public interest to release the information.

The Department made a similar argument with regard to the contents of another record relating to a particular Health Board's share of the special child care allocation. However, the record indicates that the proposal in the matter was one which was unanimously passed by the Health Board members and forwarded to the Secretary General of the Department. Health board member meetings are held in public and the public has access to reports of these board meetings. In such circumstances, I find that this portion of the record cannot be exempt under section 20.

In some other cases I have found that information may have qualified for exemption pursuant to section 20 (and some of the other sections below) at the time the record was created. However, with the passage of time the record can no longer be exempt. The records in question contain details of possible revision to the agency's service plan, the possible abandonment of progressive practices, possible curtailment of elective work and industrial relations problems that might occur. Other records refer to possible inability to continue funding for Year 2000 IT conversion systems, a possible extension of curtailment in services and possible bed closures. I find that at this time the information is no longer exempt.

In considering whether with the passage of time a record can no longer be treated as exempt, I have assumed that proposals which clearly related to temporary action during 1998, such as proposals to close wards for a specific period no longer apply and accordingly the record no longer needs to be withheld. Some records contain other proposals which may not have been implemented during the year but which may be considered again in the future. I accept that the passage of time has not removed the grounds for exemption in respect of such matters.

Based on what I have already said, I find that section 20 exempts a limited amount of information relating to proposal-type material furnished to the Department which the Department may be considering with a view to further action on its part. I detail the information which is exempt in the schedule attached to this decision.

Section 21(1)(b) and (c)

Section 21 provides as follows:

21.(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 ....

b) have a significant, adverse effect on the performance by the body of any of its functions relating to management (including industrial relations and management of its staff), or

c) disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or a public body.

(2) Subsection (1) shall not apply in relation to a case in which in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned.

The Department states that there is a continuous on-going process of negotiation within the management of the health agencies and with the Department. The Department states that the data it collects from the agencies is significant in relation to the performance by the Department of its functions relating to the management and stewardship of the health services. It states that the release of the information would tend to undermine public bodies in their management functions.

Section 21(1)(b).

For section 21(1)(b) to apply it is necessary to identify a significant adverse effect on the performance by the Department of its functions relating to management. In fact, the Department has not identified which of its own functions relating to management might be adversely affected by disclosure. Instead, it gave examples of the problems, as it saw them, which disclosure might pose for individual health agencies. The examples furnished by the Department of what could result from disclosure relate to the disclosure of underspending or the disclosure of the existence of a contingency fund. I take the view that, if adverse effect were to result from the disclosure of these records, it is more likely that it would be on the performance by the health agencies of their functions relating to management, rather than on the performance by the Department.

If disclosure poses problems for individual agencies, then it could be argued that this might make the Department's job more difficult. While there may be some truth in this, I would find it difficult to accept that this alone justifies the use of the exemption in section 21(1)(b). In any event on inquiry, this Office has discovered that a great deal of the information referred to by the Department is already in the public domain, having been released by the health boards. It also appeared that the significant adverse effect predicted by the Department in its submission has not occurred through the release by the health boards of this information. On this basis, I can attach very little weight to the predictions of the Department about the consequences of disclosure. A general prediction without any supporting evidence is, in my view, not sufficient to satisfy the requirement that disclosure could reasonably be expected to have a significant adverse effect on the performance by the Department of any of its functions relating to management.

The Department refers to certain records in its submission as containing examples of information which, if disclosed, could disrupt the effective and proper performance by health boards of their functions. However, as I have said above, no evidence has been advanced to support the argument that this would have a significant adverse effect on the performance by the Department of its management functions required by section 21(1)(b).

Some records disclose an underspend by a particular health board in a particular area of operation at a specific point in time. However, the underspend is adequately explained in one of the records. In the circumstances I have difficulty seeing that release could have an adverse effect on the functions relating to the management of the health board, never mind the Department. The Department refers to the fact that a health board's contingency fund is revealed in another record. However, enquiries made by my Office have shown that the existence and amount of the health board's contingency fund is disclosed in the finance reports issued to the members of the health board at the board's meetings and issued to members of the public on request. A further record referred to by the Department shows an underspend by another health board. Again, enquiries by my Office have revealed that information of this nature is routinely available to the health board members on a regular basis and such information is available to anyone attending the board meeting including journalists. In such circumstances, I do not find that these records are exempt under section 21(1)(b).

Section 21(1)(c).

The Department argues that premature disclosure of positions to be taken by health agencies or the Department could prejudice the outcome of negotiations carried on by individual agencies or by the Department in terms envisaged by section 21(1)(c). Paragraph (c) is designed to protect negotiation positions or plans from being disclosed directly or indirectly to other parties in negotiations. It is designed to protect the positions taken for the purpose of any negotiation carried on by or on behalf of the Government or a public body. The term "public body" has to be construed in accordance with the first schedule of the FOI Act. The wording of section 21(1)(c) extends to negotiations carried out by a public body other than the body to whom the request is made. The words used in the section are "...negotiations ...by or on behalf of the Government or a public body". In this case the exemption could cover negotiation positions or plans of the health boards, as they are public bodies, but not the voluntary hospitals. I deal with the position of the voluntary hospitals in my comments about the application of section 27(1)(b) and (c) later on in this decision. However, in my view the Department has mistaken the scope of the exemption in section 21(1)(c). The Department argues, for example, that disclosure of the existence of unfunded posts could cause industrial relations problems and public confusion. Whereas I accept that such disclosure may very well invite public comment, it does not amount to disclosure of a position taken or plans, procedures, criteria or instructions used or followed for the purpose of any negotiations carried on or to be carried on.

I am of the view that the only information contained in the records that would be exempt for the purposes of section 21(1)(c) would be information relating to the negotiation positions or plans of the Department and the health boards. Information relating to the actual expenditure, budget variances, steps already taken to keep within budget, the actual number of admissions etc. is not information relating to such positions. I think that proposal-type information, as defined earlier, is exempt under section 21(1)(c) and exemption may be claimed by the Department for such information relating to its negotiations and the negotiations of the health boards, to the extent that it has not already entered the public domain.

The Department in its submission refers to a record which mentions ward closures as an example of a record exempt under section 21(1)(c). It argues that premature disclosure of such positions taken by agencies could prejudice the outcome of negotiations carried on behalf of the agency or by the Department on behalf of the Government. I accept that where information is in the nature of a proposal only, where it has not been fully considered and a decision has not yet been made on the issue, the information may be exempt under section 21(1)(c). In considering the information in the record referred to by the Department in its submission, it is not clear to me whether the ward closures mentioned therein were decisions of the health board or merely proposals being considered by management at that time. In any event, given the passage of time since the date of that particular record, I can no longer find the record to be exempt under section 21(1)(c).

The Department refers to another record as a further example of a record exempt under section 21(1)(c). This record contains information relating to unfunded posts. This discloses the existence of a fact. It is not a proposal. The record indicates that the Department is in receipt of a submission on the issue. The Department argues that disclosure of this type of information could lead to industrial relations problems, cause public confusion and unnecessary concern. To be exempt under section 21(1)(c) the information must disclose the position or plan etc. to be used for the purpose of negotiations. I find that in this case, the information concerns the existence of a fact, not a plan, position, procedure, criteria or instruction within the meaning of section 21(1)(c). I find that this record should be released. Section 21(2)

Even where I accept that parts of these records might fall within section 21(1)(b) or (c), section 21(2) imposes a public interest test and the exemption does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the request. The Department made a general argument on public interest grounds, without relating it to a specific exemption in the Act but it is convenient to deal with the argument at this point.

The Department, in arguing the public interest, states that existing arrangements for management of the delivery of services within approved spending levels has served the Department well over the years. It argues that management must be given the time and opportunity to digest data and to make decisions only when all options have been considered. Premature disclosure will divert management into unnecessary dialogue with the media. The negative consequences of disclosure such as the impairment of the Department's deliberative process, the resultant inability to effectively monitor and control spending, the impact on industrial relations, the need to protect negotiations, the administration of legislation, the requirements of confidentiality and commercial sensitivity and the damage to the financial and economic interests of the State outweigh those in favour of disclosure. It is of the view that the public interest is currently served through the publication of the annual accounts, audit by the C & AG and the publication of the service plans and annual reports of the agencies.

As I have already made it clear, I do not accept that the release of factual information of the kind largely contained in these records is protected by section 21(1)(b) or (c). The Department has not sought to make any distinction between such factual information and proposal-type information in arguing the public interest. While, on the view I take of the matter, it is unnecessary to consider whether section 21(2) is applicable in the case of this factual information, I have decided, in fairness to the Department, to deal with its public interest arguments as they apply to the factual information contained in the records.

I am not satisfied that the predicted negative outcomes outlined above will necessarily occur through releasing the factual information. I am not satisfied that these outcomes are less likely by withholding the information than by release. Indeed, as is seen in the case of many of the health board records, the Department predicts negative outcomes from the release of records that are already in the public domain or where a similar type of information is already available. I am of the view that this seriously undermines the submission of the Department that releasing such information of a factual nature can be against the public interest. It is, at least, equally possible that many of the negative outcomes predicted are much more likely to happen where a climate of secrecy applies and where the parties most concerned and the public at large are kept in the dark about the expenditure being incurred and the necessary measures that may then have to be taken where there is an overspend. Government policy in relation to health care spending is now clearly set out in legislation. In light of that, it is important that all the stakeholders in the health service are as informed as possible. I am reassured in this view by the fact that many of the health boards publish their financial statements on a monthly, quarterly or six-monthly basis including details of budget variances and likely measures to be taken without the sort of negative consequences resulting that are predicted by the Department. In the case of health expenditure, there is a public interest in the community knowing how health spending decisions (or decisions not to spend in this area) are made. There is considerable public concern about the state of the country's health services. The health boards and hospitals are now under an obligation to ensure that they spend within allocated budget. There is a public interest in the community seeing how official management and decision-making is conducted. If the only disclosure which occurs is the publication of annual reports well after the end of the relevant period, this will greatly reduce the degree of public scrutiny. On balance I find that even if the exemptions in section 21(1)(b) and 21(1)(c) applied to the factual information in these records, the public interest would be better served by release of the information than by withholding it.

Different considerations apply to the proposal-type information which I have decided falls within section 21(1)(c). I think that there is a greater likelihood of the negative consequences argued for by the Department occurring where there is a release of information regarding proposals not yet decided upon or options or various measures being considered. The management of the health services is a complex task. It requires constant monitoring by those charged with doing so, of the level of the services being provided, of the actual cost of provision to date and projected cost of service provision to year end. It also requires the managers concerned to consider courses of action which, of necessity, will prove unpopular with one group or interested party or another. It is reasonable to expect managers to inform and consult interested parties prior to implementing firm proposals. However, it seems to me that a requirement that managers disclose all proposals, including those which have not been finalised or which are contingent, would interfere to such an extent with the process of management as not to be in the public interest.

There is a public interest in members of the public exercising their rights under the FOI Act. There is also a public interest in members of the public being informed about how the health services are being managed. However, set against this is the public interest in managers in the health service being allowed the opportunity to formulate plans without undue interference as well as the public interest in avoiding the disclosure of negotiation plans and positions. I think I can go so far as to say that I would need a good deal of convincing to hold that the disclosure of proposal type information in this particular case would better serve the public interest. At the same time, I would tend to treat with a grain of salt some arguments against disclosure based on the possibility of public confusion or unnecessary concern and which smack of protecting the public against itself.

Section 23(1)(a)(ii).

This section provides as follows:

23.(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 or impair ....

ii) the enforcement of, compliance with or administration of any law, The Department argues that the IMR and the monthly commentary by the Chief Executive Officer on performance to-date and advising on corrective strategy is an integral part of the reporting process under the Health (Amendment) (No 3) Act, 1996. It argues that release of these records would tend to prejudice the administration of the Act in that it could tend to compromise the CEOs in complying with the various statutory requirements and would tend to compromise the full implementation of the legislation.

As a preliminary point, I should remark that the provisions of the Health (Amendment) (No. 3) Act, 1996 apply to health boards. The Act is only applied by the Department on an administrative basis to the voluntary hospitals. Therefore, the Department's arguments under this section cannot apply to the voluntary hospitals.

At first sight it may seem surprising that an exemption which is clearly directed at records concerning such matters as law enforcement, security and public safety could be relevant to routine correspondence between the Department and various health agencies. It may seem that the Department are, so to speak, drawing a long bow in putting forward this exemption. However, I feel bound to deal with the arguments put forward by the Department, based, as they are, on a literal reading of the section.

One objective of the 1996 Act is to enable the Minister and Department to monitor whether or not the health boards are complying with the requirements of the Act. In seeking exemption under section 23(1)(a)(ii), the Department needs to show that its ability to monitor the health boards would be prejudiced or impaired by the release of the records. In other words it shows that release would enable the CEOs and the health boards to circumvent the monitoring function of the Department or would some how impair the effectiveness of that function. The Department has not shown how the release would actually prejudice or impair the administration of the legislation. The legal duty of each CEO under section 9 of the 1996 Act is to report to the Minister and the board where he is of the opinion that a decision of the health board will, or if a proposed decision of the board would, if made, result in the allocation being exceeded. Section 4(3) of the 1996 Act requires a CEO of a health board to furnish the Minister with such information as the Minister may require. I assume that the Department is not arguing that the release of these records will result in the CEOs or the health boards refusing to fulfil their statutory duties.

The Department argues that two records indicate that compliance with the accountability legislation is a significant influence on the health service management and deliberative process. However, I have had difficulty in finding how any of the information contained in the two records might be exempt under section 23 and I am not sure that the Department was actually arguing that they were exempt. The records in question refer to the operation of the accountability legislation and the requirements made of the agencies as a result. I do not find that the records are exempt under section 23(1)(a)(ii).

Section 26(1(a)

Section 26(1)(a) provides as follows:

26.(1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if

a) the record concerned contains information given to the public body concerned in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or....

The Department argues that implicit in the agreement between the Department and the health agencies is the principle of confidentiality and the fact that some health agencies are privately owned, but publicly funded, increases this sensitivity. Confidentiality is essential to the process and disclosure would be likely to prejudice the submission to the Department of further similar information from health agencies.

Subsection (2) of this section provides as follows:

(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. This subsection means that the health boards who are now public bodies under the Act cannot rely on section 26(1). The Department has failed to show me that disclosure of the records received from health boards is in breach of a duty of confidence provided for by an agreement, statute or otherwise by law and owed to a person other than a public body or a head or director or staff members of a public body.

The Department has relied on section 26(1)(a) in relation both to records received from the health boards and to records received from the voluntary hospitals. It will be clear from what I have said above that section 26(1)(a) cannot apply to the records received from the health boards. Nevertheless, it is convenient to deal with the possible application of section 26(1)(a) to both sets of records at the same time.

Three voluntary hospitals have consented to the disclosure of records relating to them. I have also established that at least one health board released the information relating to its affairs contained in these records to the press. For section 26(1)(a) to apply the Department must show that the four requirements in that subsection are met. These are:

• The record contains information given in confidence.
• It was received on the understanding that it would be treated as confidential.
• Its disclosure is likely to prejudice the giving of further similar information.
• It is of importance to the body that such further similar information should continue to be given.

The health boards provide (or can be asked to provide) the information to the Department pursuant to a legal requirement on them. I must presume that persons will comply with their legal duties. Both the health boards and the voluntary hospitals depend almost exclusively on the Department for funding. This fact alone, it seems to me, is likely to ensure that agencies will co-operate with the Department. In the circumstances I am unable to accept the release of the records in this case is likely to prejudice the giving of similar information to the Department in the future. Therefore, I find that section 26(1)(a) does not apply.

The Department has argued that one particular record, which refers to the cost of additional blood products, is an example of information given in confidence. I fail to see how this information is confidential. There is the possibility that the information refers to the treatment of a particular patient. However, I am of the view that there is not sufficient information in the record to identify any such patient. The Department also refers to a record which mentions the extended sick leave of an unnamed member of staff. I am of the view that if this information is exempt at all it may be exempt under section 28, not section 26. However, the requester has indicated to this Office that he is not seeking this type of information regarding staff members. Therefore, the information contained in the last two lines of the second paragraph of this record may be deleted as the requester has confirmed he is not seeking it.

Section 27(1)(b) and (c)

Section 27 provides as follows:

27.(1) Subject to subsection (2), a head shall refuse to grant a request under section 7 if the record concerned contains ....

b) financial commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or (c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.

2) A head shall grant a request under section 7 to which subsection (1) relates if

a) the person to whom the record concerned relates consents, in writing or in such other form as may be determined, to access to the record being granted to the requester concerned,

b) information of the same kind as that contained in the record in respect of persons generally or a class of persons that is, having regard to all the circumstances, of significant size, is available to the general public, .....

(3) Subject to section 29, subsection (1) does not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned.

This section was introduced for the first time by the Department in its submission to this Office. The Department argues that health agencies are in complex negotiations with other agencies in both the public and private sector. Many agencies see themselves in competition with each other for the finite health budget, for patients and for high technology capital equipment and health insurance business. Disclosure of their financial information could reasonably be expected to result in a material financial loss or could prejudice their competitive positions.

My Office consulted all of the 29 voluntary hospitals in relation to the section 27 issue. We received written submissions from 22 hospitals; 3 hospitals said that they did not object to the release of the records; and no submission was received from 7 hospitals. Several hospitals argued that the release of this information could prejudice the conduct or outcome of contractual or other negotiations and were sensitive if disclosed in this financial year. In particular, they were concerned about letters to the hospitals from the Department in response to their IMRs (these were sent by the Department to two health boards and five hospitals), details supplied by the Department of Health and Children to the Department of Finance and the reports to the Department's Management Advisory Committee where they contained reference to details submitted by the individual hospital, expenditure trends of the hospitals, pay analysis on an individual hospital basis, in-patients by speciality, employment control reports where they contained details of variances, the CEO commentaries, and the cost projections. In relation to most of the rest of the information contained in the records, the hospitals were not concerned if the information was presented on a global basis (without identifying individual hospitals).

I propose to deal with the information submitted by the voluntary hospitals under two separate headings. Firstly, there is information in the records relating to proposed courses of action being considered by the hospital management and, secondly, there is the statistical or factual information. The release of the information relating to proposed actions being contemplated by the voluntary hospitals may cause difficulties in the provision of the service itself ( e.g. through industrial relations difficulties or difficulties in other negotiations). Such release would fall within section 27(1)(c) Before deciding to refuse access to such information, the public interest in the release of the information must be considered under section 27(3) which provides that section 27(1) does not apply where on balance the public interest would be better served by granting than by refusing the request. In considering the application of section 21(2) I detailed the public interest arguments that apply generally in this case against the release of information of this nature in the case of the health boards. It seems to me that the same arguments apply in the case of the voluntary hospitals, and, therefore, I find that the public interest would not, on balance, be better served by granting than by refusing to grant release of proposal type information.

The rest of the information in these records relating to the hospitals is financial or statistical in nature. It is possible, in theory, that it could be used or interpreted in such a manner that it may lead to consequences envisaged in section 27(1)(b). However, none of the parties consulted were able to point to any specific information in the particular records in question which would definitely come within the provisions of section 27(1)(b). For example, some of the parties indicated that in some circumstances, certain information such as waiting list information might be used by private hospitals to encourage some patients out of the public system and into private hospitals. The likelihood of this happening and its desirability or otherwise were not argued before me. In the event I have decided that, with the passage of time, it cannot be said that the release of any of the information in these records will have the consequences mentioned in section 27(1)(b).

It was argued in general terms that some of the information in these records would prejudice the negotiating position of hospitals, if released. I cannot see how the release of the factual and statistical information in these records could have this effect. I would expect that a public body seeking to rely on this particular exemption would be able to show that information of this kind is likely to be of real relevance in future negotiations, that the affected party would normally seek to conceal such information from the other side in any negotiations and that release of the information will somehow act to the detriment of the party concerned. In the present case, no such evidence has been produced to me. On the contrary, it is clear that much of the information, in varying degrees of detail, is made available to the public already by the health boards. This confirms me in my view that no prejudice of the kind envisaged in section 27(1)(c) will occur.

In summary, I do not believe that, with the passage of time, the factual and statistical information contained in these particular records continues to come within section 27(1)(b) or (c), if it ever did. Accordingly, I find that the factual or statistical records are not exempt by virtue of section 27(1). The Department has specifically mentioned the issue of the cost of disposal of clinical waste and has referred me to six records, in particular. Some of this information is in the public domain through the health boards. Once again, I find that there is no evidence before me to justify a claim to the exemptions in section 27(1)(b) and (c).

Section 28

Section 28 provides as follows:

28.(1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased individual).

The Department states that the records contain personal information which needs to be excluded. Mr Wall has confirmed that he is not seeking information regarding individual patients or staff members. All names of patients may therefore be deleted. Details of gratuities or retirement money may also be deleted on the basis that the requester is consenting to the deletion of this information. The Department has argued that the information contained in a particular record regarding the extended sick leave of a member of staff and in another record regarding the purchase of previous years service by a member of staff is personal information and exempt under section 28. As I have said above, the requester has confirmed that he is not seeking this information and consents to its deletion.

Another record contains information regarding an overrun on the cost of blood products and has a named hospital and named patient. I find that the information regarding the treatment of the patient is personal information about that patient and that the name of the patient and the name of the hospital should be deleted.

Section 31

The relevant part of section 31 provide as follows:

31.(1) A head may refuse to grant a request under section 7 in relation to a record (and, in particular, but without prejudice to the generality otherwise of this subsection, to a record to which subsection (2) applies) if, in the opinion of the head

a) access to the record could reasonably be expected to have a serious adverse affect on the financial interests of the State or on the ability of the Government to manage the national economy,

b) premature disclosure of information contained in the record could reasonably be expected to result in undue disturbance of the ordinary course of business generally, or any particular class of business, in the State and access to the record would involve disclosure of the information that would, in all the circumstances, be premature, or .....

(2) This subsection applies to a record relating to ........

h) proposals in relation to expenditure by or on behalf of the State or a public body including the control, restriction or prohibition of any such expenditure .......

o) the economic or financial circumstances of a public body.......

(3) Subsection (1) does not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned.

Given the size of the health budget, the Department argues that an assumed overrun could undermine the markets' perception of the Government's will to control public spending. It says that premature disclosure would result in undue disturbance of the ordinary course of business of the management of the health services because it would undermine public confidence in the ability of the healthcare system to meet the health needs of the population and create exaggerated and misleading cases for extra resources. The Department argues that the records fall within paragraphs (h) and (o) of section 31(2).

As a general comment, it appears to me that this argument relies on the assumption that the information in the records, if released, may be misunderstood by certain people. As I have implied earlier, the possibility of information being misunderstood could rarely, if ever, be a good cause for refusing access to the records. The argument also seems to imply that the Department and the various health agencies are incapable of explaining their records to the public and are unable to present information to the public in a way which will allow any objective observer to draw accurate and balanced conclusions. I do not believe that I would be justified in accepting that any such assumption is well-founded. In my opinion, section 31(1)(b) is designed to cover business in the ordinary meaning of the word (that is relating to commercial activity, trade or professions), not the provision of services by or on behalf of the State. The information contained in some of the records referred to by the Department as an example of how section 31 applies is already in the public domain. I am of the view that the financial interests of the State would not be adversely affected by the release of the information contained in the records which are the subject of these requests. I also consider that undue disturbance will not result as envisaged by section 31(1)(b). I find that the expectations of the Department are not reasonable. I find that section 31 does not apply in this case.

The Department has referred to certain records in claiming exemption under section 31. All of these records are health board reports. The Department has not identified precisely the information within these records which would be exempt. However, it states that release would undermine the public confidence in the ability of the Irish healthcare system to meet the health needs of the population and create exaggerated and misleading cases for extra resources in the system. Whereas the exact information contained in these records may not be the same as the information contained in the finance reports issued to the health boards in question and to the members of the public, I am of the view that the information contained in the records is given to board members in broad terms and, via the health boards, to the members of the public on request. Further, having reviewed the records in question, I fail to see how their release could reasonably be expected to have the consequences envisaged in section 31 of the Act.

The Department also refers to certain records in arguing that they are proposals in relation to expenditure within section 31(2)(h). The records are letters written by the Department to certain health boards and hospitals concerning their IMRs. The main thrust of these letters is to emphasise the need for the health agencies concerned to stay within budget and to draw attention to items that may be causing budget variance. The need for health agencies to stay within the budget determination is widely known. I do not find that any of the consequences necessary for section 31 to come into play could be reasonably expected. I find that section 31 does not apply to these records.

Decision

I decide that proposal-type (non factual) information submitted by the hospitals and health boards to the Department is exempt under section 20(1). However, I decide that, to the extent that this information may have already been released through the health boards, the exemption does not apply.

I decide that proposal-type information which may disclose the negotiating positions or plans of the health boards, and which has not already been released by the health boards, is exempt under section 21(1)(c).

I decide that section 27(1)(c) applies only to the extent that the information contained in the records from the voluntary hospitals relates to proposals a voluntary hospital is considering and has not yet decided upon. The section does not operate to exempt the statistical and financial information which I decide should be released.

I decide that section 23 (1)(a)(ii), section 26 and section 31 do not apply to any of the records.

Some information in certain records is personal in nature and the requester has indicated that he is not seeking such information. I decide therefore that the information may be deleted from any records being released.

Having reviewed the decision of the Department and having considered the various submissions in this matter, I vary the decision of the Department and I direct that the requester should be granted access to the records sought with the exceptions of the records detailed in the schedule attached to this decision and for the reasons stated therein.

Information Commissioner

31 March 1999