Case 99347 and 99357. Records relating to Mr ABU's late brother (Mr ABV) and the private nursing home in which he died - whether access was necessary or expedient to understand post-commencement records - section 6 - whether records contained commercially sensitive information - section 27 - the public interest

Case Summary

Facts

Mr ABV died in a private nursing home in November 1998 and Mr ABU sought access to records held by the North Eastern Health Board (NEHB) relating to his late brother and records relating to the nursing home from 1991 to the date of his request. The NEHB decided that the records held by it relating to the nursing home from 1991 to 10 June 1999 were non-personal in nature and that Mr ABU had a right of access only to those records created after 21 October 1998 (the date of commencement of the Act for health boards). The NEHB advised Mr ABU that there was one record created between 21 October 1998 and the date of his brother's death. This record is a report of an inspection of the nursing home carried out in November 1998. The NEHB decided that release of this record would disclose personal information relating to Ms ABT, the registered proprietor of the nursing home, the disclosure of which would normally be refused under section 28(1). However, having considered the provisions of section 28(5), the NEHB decided to release the record in the public interest.

Decision

The Commissioner decided, in the case of one record, that section 27(1)(c) applied because the record contained information about negotiations between the nursing home and third parties. He decided that the public interest would not, on balance, be better served by the release of this information because it related purely to the financial business of the nursing home and had no bearing on its regulation by the health board. He noted that section 27(1)(b) or (c) could apply to some other records although no such argument had been made to him. He indicated that if it had then he would have had to have regard to the significant public interest in the public knowing how public bodies carry out inspections and in knowing that the regulatory functions assigned to them achieve the purpose of the relevant regulations. He found that references to third parties in one of the records related to personal information about those parties and should not be disclosed. Finally, he decided that access to a pre-commencement record referred to in some of these records was necessary in order to understand some of these records.

Date of Decision: 21.12.1999

DECISION

Background:

On 10 June 1999, Mr ABU made a request under the Freedom of Information (FOI) Act, 1997 to the Department of Health and Children for access to records held by the North Eastern Health Board (NEHB) relating to his late brother, Mr ABV, who died in a private nursing home in November 1998, and for access to records relating to the nursing home from 1991 to date (10 June 1999). The Department of Health and Children forwarded the request to the NEHB on the same date in accordance with section 7(3) of the FOI Act.

A decision on this request was made by the NEHB on 16 June 1999. Mr ABU was advised by the NEHB that the first part of his request related to personal records of the late Mr ABV and that the records are the property of the nursing home. Mr ABU was advised that the NEHB's only relationship with the nursing home is regulatory and on that basis the records did not exist within the health board. Accordingly, access was refused to these records under section 10(1)(a).

The NEHB decided that the records held by it relating to the nursing home from 1991 to 10 June 1999 were non-personal in nature and that Mr ABU had a right of access only to those records created after 21 October 1998 (the date of commencement of the Act for health boards). The NEHB advised Mr ABU that there was one record created between 21 October 1998 and the date of his brother's death. This record is a report of an inspection of the nursing home carried out in November 1998. The NEHB decided to consult Ms ABT, the registered proprietor of the nursing home, under section 29, and she was asked to make a submission as to why and on what evidence the disclosure of the record would be so harmful to her interests that release should not proceed. In the light of Ms ABT's reply, the NEHB decided on 9 July 1999 that release of the record would disclose personal information relating to her, the disclosure of which would normally be refused under section 28(1). However, having considered the provisions of section 28(5), the NEHB decided to release the record in the public interest. Section 29 provides for a right of appeal by a third party to me where the exemption contained in section 26 (information obtained in confidence), section 27 (commercially sensitive information) or 28 (personal information) applies to a record and, in the case of section 26 and 27, that the public interest would, on balance, be better served by disclosure or, in the case of section 28, that the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld. No reference was made in the consultation letter as to what section(s) of the Act the NEHB thought applicable. Ms ABT asked me to review the decision to release this record on 14 July 1999. I accepted the request for a review.

Mr ABU, through the Department of Health and Children, clarified that he was not seeking the patient records held by the nursing home but any records held by the NEHB which related to personal information about his late brother. He also confirmed that he had received his brother's personal records from Our Lady of Lourdes Hospital, Drogheda. Further, he confirmed that he required access to all the records relating to the nursing home up to the date of his request i.e. 10 June 1999. The NEHB by letter dated 29 June 1999, sought to clarify some of the matters raised by Mr ABU. It was confirmed that there was no record pertaining to the late Mr ABV on the NEHB file of the nursing home. The NEHB pointed out that the late Mr ABV resided in the administrative area of the Eastern Health Board and that would have been the area where services would have been available to him. However, Mr ABU was invited to advise the NEHB of any possible location within its administrative area where services may have been accessed by his late brother.

Mr ABU sought an internal review of the decision by NEHB on 19 July 1999. In its decision on internal review, dated 3 August 1999, the NEHB advised Mr ABU that the records held by the nursing home in relation to his late brother were not the property of the board and were not within the ambit of the FOI Act. He was advised to contact the proprietor of the nursing home directly in this matter. The NEHB confirmed that he had been given access to all the records relating to his late brother held by Our Lady of Lourdes Hospital, Drogheda. The NEHB indicated that there were no further records held by the board relating to personal information about the late Mr ABV but again offered Mr ABU the opportunity to identify any further records which may be held by them. With regard to what were described as non-personal records in relation to the nursing home from 21 October 1998, the NEHB advised Mr ABU that the board was awaiting the outcome of the appeal to me by Ms ABT. Access to non-personal records prior to 21 October, 1998 was refused on the grounds that they were outside the scope of the FOI Act.

Mr ABU applied to me for a review of the decision of the NEHB and I accepted his request for review.

By letter dated 17 August 1999, Mr ABU advised me of his belief that there were personal records on the nursing home file held by the NEHB. He advised me that in his view there should be records relating to the nursing home created after his brother's death, not least another report of an inspection of the nursing home. He advised me that he understood that such inspections are required to be carried out every six months.

Mr ABU met with officials from my Office on 18 August 1999. He stated that he believed that there were records held by the NEHB which "were personal" to his brother. He explained that he was anxious that his case be finalised as soon as possible as he was under great stress and anxious to proceed with legal action in the matter.

I wrote to Ms ABT on 23 August 1999 in relation to her appeal. I pointed out that the NEHB had originally decided that the release of the report of the inspection of the nursing home would disclose personal information about her in accordance with the provisions of section 28(1) and that, having considered the provisions of section 28(5), the NEHB decided to release the record in the public interest. I advised her that I had examined the record and that I considered that section 28 did not apply in this case on the grounds that the record did not contain personal information about her as an identifiable individual. I drew her attention to the provisions of section 26 (information obtained in confidence) and section 27 (commercially sensitive information) of the Act as having possible application in her case and invited her to make a submission to me in relation to the matters outlined in my letter. I also wrote to the NEHB on 23 August 1999 inviting submissions from them in relation to Ms ABT's appeal and also in relation to Mr ABU's request for a review. I requested that all the records relating to the request be forwarded to me.

Mr ABU contacted my Office on a number of occasions and provided background information in relation to his request and various developments in relation to the legal matters which he was pursuing.

On 5 October 1999, I wrote to Mr ABU outlining my preliminary views in relation to the review. I clarified for Mr ABU that I accepted that he was pursuing a number of issues with the NEHB and other agencies in connection with the nursing home, but I advised him that it was only those issues which directly related to this review under the FOI Act that I intended to address. I confirmed my understanding that his request related to three groups of records:

• those which relate to personal information about his late brother, i.e. medical records etc.,
• those which relate to the nursing home and were created before 21 October 1998 and
• those which relate to the nursing home and were created between 21 October 1998 and the date of his request 10 June 1999.

I explained that, in my view, as the late Mr ABV was a private patient in the nursing home, it was unlikely that the NEHB would hold records in the first group. I also advised Mr ABU that the FOI Act could provide access to records created prior to 21 October 1998 (the date of the application of the FOI Act to health boards) in this case, if such records related to personal information about his late brother or if access was necessary or expedient to understand a record created after that date. I explained that I had examined the 124 records held by the NEHB on the nursing home file created between July 1987 and 21 October 1998 and that these records consisted of correspondence between the nursing home and the NEHB relating to inspections, recommendations arising out of inspections and general correspondence. I suggested that these records were unlikely to relate to personal information about Mr ABU's late brother as these records related to the accommodation provided by the nursing home, the number of patients under care, the recording systems in relation to admitting patients and any recommendations made by the NEHB. Additionally, there was no mention of the late Mr ABV in these records.

Finally, I noted that Mr ABU, in the course of his conversations with my Office, had indicated that he required access to any records relating to the nursing home created between the date of his brother's death in November 1998 and 10 June 1999. I advised him that there were four records created in that period held by the NEHB, detailed below:

1. Record dated 26 November 1998 from the nursing home to Mr Peter Finnegan, NEHB.
2. Memorandum dated 18 January 1999 from Dr W Reilly, Senior Area Medical Officer, NEHB to Ms ABT.
3. Memorandum to file dated 18 January 1999 from Dr W Reilly re telephone conversation with Ms ABT.
4. Letter dated 1 June 1999 from Mr T J Oxley, NEHB to Mr ABU enclosing a copy of the Certificate of Registration.

I advised Mr ABU that I intended to consult the third parties as relevant parties to the review. I invited Mr ABU to make further submissions to me in relation to these preliminary views.

Mr ABU requested an opportunity to make an oral submission in relation to my preliminary views. He also made a written submission to me dated 28 October 1999.

Officials from my Office met with Mr ABU on 5 November 1999. At the meeting, Mr ABU indicated that he was happy for me to confine my review to the records numbered 1 to 4 above and also the inspection report which was the subject of Ms ABT's appeal to this Office.

By letter dated 9 November 1999, I confirmed the details agreed at the meeting. I also pointed out to Mr ABU that the inspection report refers to an earlier record, dated 8 June 1998, access to which I considered was necessary to understand the inspection report. I undertook to consider this record as part of the review. Mr ABU subsequently confirmed to me by letter dated 10 November 1999 that he was happy for me to confine my review to these six records.

I wrote to Ms ABT on 10 November 1999, outlining these developments and advising her that I intended to deal with both reviews together. I detailed my preliminary observations in relation to the review and invited her to reply to me in relation to these matters by 1 December 1999. I pointed out that the report of the inspection of the nursing home in November 1998 refers to an earlier record dated 8 June 1998. I explained that the FOI Act provides for access to records created prior to 21 October 1998 if access is necessary or expedient to understand a record created after that date. I explained that in my view access to the record dated 8 June 1998 was necessary or expedient in order to understand the inspection report. I asked her to consider my comments as relating to this record also.

In relation to the report of the inspection of the nursing home, I said that my preliminary view was that, with the exception of the names of nursing staff and patients which I considered relate to personal information about those individuals, the record should be released in full. I noted that the report was critical of standards in the nursing home and that a case under section 27(1) could be made that public disclosure could result in a material financial loss to the business or prejudice contractual or other negotiations by discouraging people who might be considering availing of the services offered by the nursing home. However, I considered that, even if a case was presented on this basis that satisfied the provisions of section 27(1)(b) or (c), the Act provides at section 27(3) for release of information potentially damaging to a business, in the public interest. In my view, there is a significant public interest in the public knowing how public bodies carry out inspections in individual cases and that the regulatory functions assigned to them achieve the purpose of the relevant regulations.

With regard to record number 1 above, I indicated that I could see no reason why the record could not be released in full. I pointed out that, in my view, the position outlined in relation to the inspection report equally applied to records numbered 2 and 3 as these records also refer to the letter dated 8 June 1998. Accordingly, I advised Ms ABT that I could see no reason why the records numbered 1 and 2 could not be released in full. In order to clarify this point it is important to note that records numbered 2 and 3 refer to a letter of 18 June 1998 regarding the implementation of certain recommendations therein. However, I have examined the records on the file and there is no letter of 18 June 1998. The recommendations are outlined in the letter to Ms ABT dated 8 June 1999. I am therefore assuming that the reference to the 18 June 1998 in these records as opposed to the 8 June 1998 is a typographical error. The NEHB has confirmed to me that this is, in fact, the case.

My preliminary view in relation to record number 3 was that it contained some information which related to the financial business of the nursing home and that I did not consider that the balance of the public interest was better served by the disclosure of this information. I advised Ms ABT that I considered that this record could be released with the deletion of this information.

Record number 4 is a letter dated 1 June 1999 to Mr ABU which provides details of the registration of the nursing home which I understand are required to be on public display. I asked Ms ABT to confirm that she had no objection to the release of this letter.

I also drew Ms ABT's attention to a reference in the inspection report to a report from a Mr Donnelly. I indicated that, in the event such a record exists, it could be necessary to consult further in this regard.

To date I have received no response from Ms ABT in relation to any of my letters regarding her appeal or this review.

I wrote to the NEHB on 10 November 1999 outlining my views in similar terms. The NEHB has indicated that it has no difficulty with my position as outlined and therefore it did not intend to make further submissions to me in this regard. However, the NEHB has provided me with the hand-written notes taken by Mr Donnelly, Environmental Health Officer which are dated 17 November 1998 and relate to the inspection of the nursing home. This record also forms part of the review, making seven records in all.

Submissions

No specific submissions have been made to me in relation to these records, either by the NEHB, who have indicated that they have no objection to the release of these records, or by Ms ABT, who despite a number of letters following receipt of her appeal, has not responded at all to date.

However, Ms ABT, in her letter of application to me, stated that she objected to the release of the inspection report on the basis that Mr ABU wished to contest his late brother's Will and there was nothing in the inspection report or any other inspection reports of the nursing home which relates to the late Mr ABV, his care or his accommodation. She enclosed a copy of her letter to the NEHB dated 25 June 1999 which details some further views in relation to the release of this record. She pointed out that Mr ABU was unknown to the nursing home until after his brother's death and that he was not recorded as next-of-kin nor was he executor of the Will. She stated that there was nothing in the record relating to the late Mr ABV and that inspections carried out by the health boards were the business of the health boards and in the case of a breach of the regulations, the courts. She expressed concern about what might happen to the information in the report in the event of its disclosure to Mr ABU.

Findings

The records which are to be considered by me in this review are those numbered 1 - 4 above, with the addition of the report of the inspection of the nursing home in November 1999, (number 5), the hand-written notes of Mr Donnelly, Environmental Health Officer (number 6) and the pre-commencement record, dated 8 June 1998 from Dr W Reilly, Senior Medical Officer, NEHB to Ms ABT with an attached draft signed by Mr Donnelly and hand-written notes (number 7).

I have already outlined my preliminary observations in relation to records numbered 1 - 4. No arguments have been made to me that these records contain commercially sensitive information within the meaning of section 27. However, in my view, record number 3 contains information which relates to negotiations between the nursing home and third parties. I consider that this information comes within the provisions of section 27(1)(c) as disclosure could prejudice the outcome of other negotiations. Moreover, having considered the provisions of section 27(3), I do not consider that the public interest, on balance, would be better served by the disclosure of this information as it relates purely to the financial business of the nursing home and has no bearing on the regulatory function of the health board in relation to nursing homes.

Record number 4 is a letter dated 1 June 1999 to Mr ABU which provides details of the registration of the nursing home which I understand are required to be on public display. I can see no reason to withhold access to this record and the attached registration details.

Record number 5 is the report of the inspection of the nursing home and is the subject of the appeal by Ms ABT from the decision of the NEHB to release. I have looked at the report of the inspection in November 1998 and it appears to me that the names of the nursing staff and the named patient require to be deleted under section 28 because they relate to personal information about those individuals. I do not see any public interest to be served in disclosing the names of these individuals.

In my preliminary observations I noted that the report is critical of standards in the nursing home and that a case could be made that public disclosure could result in a material financial loss to the business or prejudice contractual or other negotiations by discouraging people who may be considering availing of the services offered by the nursing home. No such argument has been made to me by either Ms ABT or the NEHB. Nevertheless, even if a case was presented on this basis which satisfies the provisions of section 27(1)(b) or (c) of the Act, the Act provides at section 27(3) for release of information potentially damaging to a business, in the public interest. It seems to me that there is a significant public interest in the public knowing how public bodies carry out inspections in individual cases and that the regulatory functions assigned to them achieve the purpose of the relevant regulations. Some confusion has arisen in this case because the original decision maker in a letter to Ms ABT seemed to accept that the record contained personal information relating to Ms ABT although no reason was given as to why he considered this to be so. The internal reviewer treated the record as non-personal information. I have taken the view that the report does not contain personal information about Ms ABT. It is possible, or even probable, that it relates to property of Ms ABT but it is solely concerned with the standard of the accommodation from the viewpoint of the appropriate regulations and the information contained in the report is clearly not about Ms ABT.

Record number 5 also contains references to records numbered 6 and 7.

Record number 6 contains the hand-written notes of the inspection of the nursing home in November 1998 by Mr Donnelly, Environmental Health Officer. This record was not made available to me by the NEHB at the outset, nor was it considered by the NEHB in making the decision on the request. I have examined Mr Donnelly's report on the nursing home and I consider that the record contains information which is critical of the nursing home. However, having regard to the fact that many of these criticisms are outlined either in the inspection report itself or are repeating criticisms in the letter of 8 June, 1998 (record number 7), and that I have already afforded Ms ABT an opportunity to make a submission to me on this point, I have decided that it is not necessary to further consult with Ms ABT in relation to this particular record.

In my view, it is possible that this record contains information that comes within the terms of section 27(1)(b) or (c). However, having regard to my comments above with regard to the public interest, I consider that this record should be released to the requester. The record also names the nurse on duty at the time of the inspection and as this relates to personal information about the individual, I consider that this reference should be deleted from the record before release to the requester.

Record number 7 dated 8 June 1998, is a letter from Dr W Reilly, Senior Medical Officer to Ms ABT following inspections of the nursing home in April 1998 and May 1998. This letter makes certain recommendations and requires certain action to be taken by the nursing home. As I explained in my preliminary observations, I consider that access to this record is necessary in order to understand records numbered 2, 3 and 5.

Section 6(5)(a) of the FOI Act provides for access to records created prior to 21 October 1998 in the case of health boards if access is necessary or expedient in order to understand a record created after that date and section 6(5)(b) provides for access if the record relates to personal information about the person seeking access. Record number 7 does not relate to personal information about Mr ABU. However, I consider that this record is within the ambit of the Act by virtue of section 6(5)(a).

In my decision in the case of Mr ABE and the Department of Marine and Natural Resources (decision number 98117) I explained in the following terms how section 6(5)(a) should be applied:

"In one sense "to understand" a document means simply to comprehend what is written in the document, or, in other words, to have a literal understanding of what it says. On this interpretation, a record is likely to be capable of being understood unless it is ambiguous or incomplete in some way or contains symbols or codes which are not explained in the record.

However, it seems to me that the word "understand" in section 6(5)(a) is not used in this narrow sense. In my view, the section is directed not at the question of whether a record can be understood in a literal sense without reference to earlier records but at whether its substance (or gist or subject matter) can be understood".

In this case, records numbered 2 and 3 make reference to the implementation of the recommendations detailed in record number 7 but do not detail the recommendations themselves. It is not possible therefore to understand the substance of the record, without access to record number 7. In the same way, record number 5 makes a reference to the fact that not all of the previous recommendations have been implemented but again the details of the recommendations are omitted. In my view, the inspection report cannot be understood without reference to record number 7.

Attached to record number 7 is a copy of an earlier report by Mr Donnelly which was used to draft the letter of 8 June 1998. I do not think that access to this record is necessary or expedient to understand the records in this case created after 21 October 1998.

Decision

Having completed my review under section 34(2) of the FOI Act, I vary the decision of the NEHB and direct that records numbered 1, 2 , 4 and 7 (without the attachment) be released in full to the requester, record number 3 be released with the deletion of the first sentence and records numbered 5 and 6 be released with the deletion of the names of the third parties.

Information Commissioner

21 December 1999