Case 000528. Request for details of out-of-court settlement of an employment dispute involving Board and senior hospital consultant - whether release would have adverse effect on functions relating to management - section 21(1)(b) - whether release would disclose positions taken for the purposes of negotiations - section 21(1)(c) - whether records protected by legal professional privilege - section 22(1)(a) - whether release would constitute a contempt of court - section 22(1)(b) - whether release would prejudice or impair the enforcement of, compliance with, or administration of any law - section 23(1)(a)(ii) - whether release would constitute a breach of a contractual duty of confidence - section 26(1)(b) - whether release could result in a material financial loss or prejudice the competitive position of a person in conduct of business - section 27(1)(b) - whether release could prejudice contractual or other negotiations - section 27(1)(c) - whether release would involve disclosure of personal information - section 28(1) - whether public interest better served by release than by refusal - section 21(2), section 27(3) and section 28(5)(a).

Case Summary

Facts

In October 2000, the Board agreed an out-of-court settlement with a senior hospital consultant who had taken legal proceedings following his having been placed on administrative leave by the Board, his employer. The background to the dispute involved issues of clinical independence including whether the Board could restrict the duration of hospital stay of the consultant's patients. The dispute attracted considerable media and other attention and the High Court had already given judgment on an application by the consultant for an interlocutory injunction to restrain the Board from proceeding with its decision to place him on administrative leave. The settlement terms agreed between the parties included a confidentiality clause. The request was for access to the details of the "legal and financial settlement reached" between the Board and the consultant.

The Board refused the request on the grounds that the settlement reached was confidential as provided for in the agreement [section 26(1)(b)]; that release of the records would have a significant adverse effect on the Board's performance of its management functions [section 21(1)(b)]; that release of the records would disclose positions taken for the purposes of negotiations [section 21(1)(c)]; and that release of the settlement terms would be to release personal information about the consultant [section 28(1)]. At internal review, the Board affirmed the initial decision for the reasons given in that decision; it also relied on some additional exemptions: that the records were protected by legal professional privilege [section 22(1)(a)] and that disclosure of the records "could reasonably be expected to prejudice or impair the administration of any law" [section 23(1)(a)(ii)]. In the course of the Commissioner's review, the Board sought also to rely on the exemptions at section 27(1)(b) and 27(1)(c) of the FOI Act.

Decision

The key fact permeating the Commissioner's decision is that release of the records sought would be at odds with the confidentiality terms included in the settlement between the Board and the consultant.

The Commissioner makes it clear that a decision to grant the request will depend on the facts and circumstances arising in this particular case; it will not amount to a general conclusion that public bodies cannot expect to have confidentiality clauses upheld where records are sought under the FOI Act. The decision makes it clear that there will be circumstances in which a public body will be justified in accepting a duty of confidence and can expect that this duty will be protected by section 26(1)(b) in the event of an FOI request. At the same time, the Commissioner takes the view that the FOI Act does place some constraint on the extent to which public bodies can enter into confidentiality agreements. The Commissioner does not accept the requester's contention that, in this case, the confidentiality clause was entered into by the Board with a view to circumventing the FOI Act. However, the decision makes clear that, were the Commissioner to find this to have been the case, "this would represent a very significant issue in the consideration of whether the information should be released in the public interest".

Three of the exemptions invoked by the Board - sections 21, 27 and 28 - include a public interest test on the basis of which the exemption (if it is found to apply) may be set aside. The Commissioner found that neither section 21 nor 27 apply but that section 28 does apply. For the sake of completeness, the Commissioner considered the public interest arguments in the case of sections 21 and 27 as well as in relation to section 28. In all three instances, the public interest considerations were the same.

The main public interest argument advanced by the Board, in support of the refusal of the request, was the protection of the reputation of the consultant who continues in private practice. Further public interest arguments from the Board included (1) avoiding undue or unfair prejudice to public bodies in the conduct of their affairs and (2) protecting the legitimate commercial interests of private entities. In the particular circumstances of this case, where it appeared from the conduct of the consultant in question that he has no objection to the granting of the request, and where details of the dispute are already in the public domain, the Commissioner concluded that there is no very strong public interest requirement to protect the reputation or privacy rights of the consultant. On the other hand, the Commissioner identified a very strong public interest in transparency and accountability in the spending of public money; she did not accept that the existence of specific mechanisms rendered additional such mechanisms unnecessary. ("The existing system of audit and scrutiny provides certain safeguards but this is not an argument against further such safeguards, including public disclosure of the details of public spending.") Furthermore, the Commissioner had regard in her decision to some specific matters relating to this case; these included the fact that the terms of the settlement had not been disclosed to the Department of Health, nor to the Chairman or members of the Board, nor had they come to the attention of the external auditor. While stating expressly that these matters did not constitute grounds for criticism of the Board, the Commissioner decided that these matters further supported an existing very strong public interest argument in favour of granting the request. The decision of the Commissioner was that the public interest served by granting the request outweighed the public interest served by a refusal of the request.

In relation to section 26(1)(b), the Commissioner found that, in the specific circumstances of this case, release of the details of the settlement terms by the Board would not constitute a breach of a duty of confidence owed by the Board to the consultant. This finding is grounded on an inference drawn by the Commissioner from the behaviour of the consultant in the course of the review. With one limited exception, the consultant opted not to engage with the Commissioner for the purposes of the conduct of her statutory review. When the consultant failed to respond to the Commissioner's written invitations to make a submission, she wrote to him to say that, in the event of his being opposed to release of the records, she would expect him to notify her of that fact; furthermore, she stated that, in the event of his failing to reply, she would feel free to conclude that he did not oppose the release of the records to the requester. As the consultant did not reply to this letter, the Commissioner concluded that the consultant was not opposed to the release of the records and that release by the Board, under the FOI Act, would not constitute a breach of a duty of confidence owed by the Board to the consultant.

In her decision the Commissioner also addresses the issue of whether the exemption at section 26(1)(b) is intended to operate as a protection for the interests of a public body. Her conclusion on this issue is summarised as follows:

"Having regard to the FOI Act in its entirety, I take the view that the protection contained in section 26 is not intended to protect solely the interests of a public body; rather, that protection is directed at entities other than public bodies and it will operate to protect the interests of a public body only where those interests co-incide with other interests which require to be protected. All of the essential interests of public bodies are already adequately protected by sections 19 - 24 and sections 30 and 31."

In relation to the section 22 and 23 exemptions claimed by the Board, the Commissioner found that none of these applied.

The Commissioner annulled the decision of the Board and directed instead that all of the records identified as within the scope of the request should be released to the requester.

Date of Decision: 14.10.2004

Our Reference: 000528

14.10.2004

Mr. John Burns The Sunday Times 4th Floor Bishop's Square Redmond's Hill Dublin 2

Dear Mr. Burns

I refer to your application to this Office under the Freedom of Information (FOI) Act, 1997 for a review of the decision of the North Eastern Health Board (the Board) on your request dated 10 October 2000. I apologise for the very long delay which has occurred in bringing this review to a conclusion.

Background

In your request of 10 October 2000 you sought access to "details of the legal and financial settlement reached between the board and Colman Muldoon and... how this settlement is to be effected and financed". The settlement referred to by you followed the issue of High Court proceedings by Dr. Muldoon against the Board. By way of background, it is relevant to record that Dr. Muldoon is a medical consultant employed by the Board at Our Lady of Lourdes Hospital, Drogheda, Co. Louth; that he was placed on administrative leave by the Board following disagreement with Hospital management regarding the duration of stay of patients in his care; that he initiated legal action against the Board arising from this situation and that this action was struck out following an out-of-court settlement reached between the parties.

The initial decision of the Board, dated 2 November 2000, was to refuse your request on the grounds that the settlement reached was confidential as between the parties [section 26(1)(b)]; that release of the records would prejudice the Board's performance of its management functions [section 21(1)(b)]; that release of the records would disclose positions taken for the purposes of negotiations [section 21(1)(c)]; and that release of the settlement terms would be to release personal information about Dr. Muldoon [section 28(1)]. In its internal review decision dated 29 November 2000, the Board affirmed the initial decision for the reasons given in that decision; it also cited some additional exemptions as grounds for refusing your request. The additional exemptions claimed were: that the records were protected by legal professional privilege [section 22(1)(a)] and that disclosure of the records "could reasonably be expected to prejudice or impair the administration of any law" [section 23(1)(a)(ii)]. I note that during the course of this review the Board has clarified that a reference to "section 22(1)(c)" in its internal review decision of 29 November 2000 and a subsequent letter to my Office was in error and the reference should, in fact, read "section 21(1)(c)".

As a third party whose interests might be affected, my Office notified Dr. Muldoon of the review, initially in writing to his solicitors and subsequently, in writing, to Dr. Muldoon himself. Dr. Muldoon was informed of my investigator's preliminary views on the case and he was offered an opportunity to make a submission to my Office in relation to any matter which he considered relevant to this review. My Office has written to Dr. Muldoon and his solicitors on a number of occasions. Dr.. Muldoon has opted, as his right, not to make any substantive submission in this case. He has not notified my Office that he objects to the release of the records in this case, nor has he notified my Office that he is agreeable to their release. I refer further to my contact with Dr. Muldoon below.

I have now completed my review of the Board's decision in accordance with the provisions of the Freedom of Information (FOI) Act, 1997, as amended by the Freedom of Information (Amendment) Act, 2003. All references in this decision to particular sections of the FOI Act, except where otherwise stated, refer to the 1997 FOI Act as amended. I am aware that this letter is somewhat lengthy and technical; however, the Board has relied upon a number of exemptions and I believe it is necessary to deal with each of these exemptions in some detail.

In carrying out this review, I have had regard to -

• your application for review, correspondence between my Office and yourself in relation to the matter and the telephone conversation between yourself and Ms Connolly of this Office on 21 November 2003;
• correspondence between the Board and yourself in relation to this matter;
• correspondence and communications between my Office and the Board/Board's solicitors (BCM Hanby Wallace) including the various submissions, documents and correspondence received by my Office from the Board/Board's solicitors in connection with this review and the meeting between Mr Butler of my Office and members of staff of the Board;
• correspondence and communications between my Office and Dr. Muldoon and his solicitors, Dore & Co.

I have also examined the records at issue, copies of which were provided by the Board for the purposes of this review.

Scope of Review

It is not entirely clear that all of the records identified (and provided to this Office) by the Board fall within the scope of your request and it is also possible that further records may exist which fall within that request. In the course of a telephone conversation with Ms Connolly of this Office on 21 November 2003, you agreed to confine the scope of your request to those records which reveal the terms of the settlement between the Board and Dr. Muldoon and records closely related to that settlement. The Board has agreed to the release of a statement read in open court regarding the settlement; that record may therefore be excluded from the scope of this review.

I am satisfied that the following records fall within the scope of this review:
Record (1) - a signed settlement agreement relating to High Court proceedings brought by Dr. Colman Muldoon against the Board.
Record (2) - a signed settlement agreement in a further set of High Court proceedings brought by Dr. Muldoon.
Record (3) - an invoice from BCM Hanby Wallace to the Board dated 27 November 2000, reference 14638.
Record (4) - an invoice from BCM Hanby Wallace to the Board dated 27 November 2000, reference 14634.
Record (5) - a hand-written note starting with the words "Dore & Co."
Record (6) - a letter from BCM Hanby Wallace to the Board dated 14 June 2001 marked "NEHB Received".
Record (6A) - the same letter or fax of the same letter (this is unclear) from BCM Hanby Wallace to the Board dated 14 June 2001 marked with various hand-written notes and marked "PAID".
Record (7) - a letter or fax (this is unclear) from Dore & Co. to BCM Hanby Wallace dated 13 June 2001.
Record (7A) - the same letter or fax (this is unclear) from Dore & Co. to BCM Hanby Wallace dated 13 June 2001 marked 'PAID'.
Record (8) - a copy letter from the Board to BCM Hanby Wallace dated 20 June 2001.
Record (9) - an invoice from BCM Hanby Wallace to the Board dated 23 July 2001, reference 16863.

I also note that during the telephone conversation with Ms Connolly on 21 November 2003, you agreed that the name of a particular individual could be deleted from the records. This name appears in Record 2 above. Thus, the name of that individual (which appears at the sixth line of that record before the words "& the North Eastern Health Board") may be deleted and excluded from the scope of this review.

Findings

Preliminary Matters

The records sought relate to a settlement reached between the Board and Dr. Muldoon. The matter of the dispute has been in the public domain. In refusing your request the Board informed you that the settlement reached was in the context of High Court action taken by Dr. Muldoon. It has also informed you that the settlement reached includes a confidentiality agreement preventing either party from disclosing its terms. As mentioned above, in its decisions to refuse your request the Board relied upon the exemptions at section 21(1)(b), 21(1)(c), 22(1)(a), 23(1)(a)(ii), 26(1)(b) and 28(1) of the FOI Act 1997. In the course of this review, the Board sought also to rely on the exemptions at section 27(1)(b) and 27(1)(c) of the FOI Act.

Section 34(12)(b) of the FOI Act, 1997 provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the public body shows to my satisfaction that the decision was justified. During the course of this review the Board made a number of arguments in support of its decision to refuse access to the records concerned. In making its arguments and submissions to my Office the Board has not always been entirely clear in associating the exemption claimed, and the argument in support of that exemption, with a specific record or records. The importance of making arguments by reference to the particular record(s) at issue and to the relevant provisions of the FOI Acts was made clear to the Board by my Office. Where the Board has not specifically invoked a particular provision of the Act in making its arguments, I have sought to address those arguments in the context of what appears to be the most likely relevant provision. I have done this in an effort to address as fully as possible the arguments made by the Board. However, it is important to note that the effect of section 34(12)(b) is that the onus rests on the public body to justify its decision to refuse to grant the request.

Before dealing with the exemptions claimed, I wish to make two points. The first is that, while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. I also have to refrain from disclosing information which a public body contends is contained in an exempt record so as to preserve that party's right of further appeal to the High Court. These constraints mean that, in the present case, the extent of the reasons that I can give is somewhat limited.

I will now address each of the exemptions claimed by the Board as supporting its decision to refuse your request.

Section 21

Section 21(1)(b)

Section 21(1)(b) of the FOI Act provides that a request for access to a record may be refused where access could reasonably be expected to have a significant, adverse effect on the performance by a public body of any of its functions relating to management. In considering the application of this exemption I adopt my predecessor's approach to interpreting the words "could...reasonably be expected to..." as set out in The Sunday Times Newspaper & Others and the Department of Education and Science, Case Number 98104, 3 OIC Dec. 84 121 (1999) as follows:

"It seems to me that in arriving at a decision to claim a section 21 exemption, a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur."

As section 21(1)(b) refers to "significant, adverse effect", an assessment of the degree of importance or significance attaching to the adverse effect must also be made.

The Board's decision to rely on this provision appears to be based on the view that release of the terms of the settlements would make it impossible for it to enter into a similar settlement in the future as the confidentiality clause would be negated. It argues it is important that health boards should not be fettered in the performance of their functions and that they should be free to reach agreements with parties in litigation, if so required. It argues that it must have the freedom, in certain circumstances, to negotiate agreements in confidence as otherwise it may be unable to negotiate agreements which are otherwise in the public interest. It says that the confidentiality of such arrangements is paramount to their success. It also argues that disclosure of the records "would act to severely restrict legal advice that can be given to the Health Board in similar circumstances." The Board argues that release of the settlement terms in this case would effectively prohibit confidentiality clauses and impose a mandatory requirement to disclose agreements; this would constitute a significant impediment in its dealings with industrial relations and litigation matters. It states that it is the experience of both the Board and its legal advisers that confidentiality agreements are usually central elements in the resolution of litigation arising out of employment disputes both in the public and the private sectors and it questions any assertion that such agreements must be set aside as a result of the FOI Act.

The main element of the potential harm identified by the Board above is the perceived impossibility of making future settlements if the records in relation to this settlement were to be released. The argument appears to be that, unless the Board can ensure that confidentiality in respect of settlements with the Board can be guaranteed, such settlements may not be possible in the future. The Board suggests that a decision to release the records in this case would amount to a prohibition on confidentiality clauses for the future and a mandatory requirement to disclose in such circumstances. I address the specific issue of confidentiality, and the enforcement of the confidentiality clauses in this case, under section 26 below. However, the Board has raised the issue at a more general level under section 21 and I will address the issue insofar as it is relevant to the application of section 21.

I am satisfied that a decision to release the records in this case does not necessarily mean that records relating to future settlements would also have to be released. A decision in this review rests entirely on the facts which, as it will be seen from this decision, are quite specific to this case. I address these further below. It is entirely possible that, depending on the circumstances, in other cases the records concerned could be found to be exempt. Any decision that the records should be released in this case should not, therefore, be regarded as a prohibition on confidentiality clauses in all cases or a mandatory requirement to disclose in all circumstances.

It seems to me that the Board is seeking a guarantee that, in all cases where it includes a confidentiality clause in an agreement, such agreements must remain confidential. During the course of this review it was pointed out to the Board by my Office that the Board's argument in this respect seemed to relate to all future confidentiality agreements as a class. However, whether or not records may be released under FOI will depend on the facts of each case. The Board states that it is not seeking to address confidentiality clauses as a class but rather is addressing such clauses in contentious litigation arising from difficult and lengthy employment disputes and, in particular, the circumstances of this case. I accept that confidentiality clauses feature frequently in the resolution of litigation arising out of employment disputes. I accept it is important that health boards are free to reach agreements with parties in litigation, as necessary. However, I do not accept that release of the records in this particular case would render this impossible. As I have said above, release of the records in this case does not mean that all future settlement terms would automatically be released.

I accept that, in certain cases, the possibility of disclosure may influence the settlement or the willingness to reach a settlement. However, I also consider that once court proceedings in relation to disputes of this nature are commenced, there is always a likelihood or possibility of information relating to the dispute being disclosed in one way or another. I accept that release of the records in this case may have some influence in the future. However, it seems to me that settlements are reached in disputes where the parties to that dispute consider the settlement to be in their interests. While the possibility that the terms of any agreement will remain confidential may be one factor, among a number of relevant factors, in the process of seeking to settle a dispute, I do not accept that it is a primary factor; nor do I accept that an inability to guarantee confidentiality would necessarily render such settlements impossible in the future.

The Board contends that release of settlement terms, where a confidentiality agreement exists, would undermine the Board's credibility in the eyes of its staff. It also states its view that, if a full court hearing had taken place in the Muldoon case, it would have added to the dissent, fomented unrest and divided staff and management. It argues that release of the records at this stage would re-open matters and negate "much of the work that has been done in the interim period to restore good relations and continue the objectives of providing the best quality patient care, management and the public interest in the good management and delivery of health services within Our Lady of Lourdes Hospital." It also argues that disclosure would have a serious impact on the ability of the Board and of the management and staff of the hospital concerned to discharge their functions effectively.

While it is conceivable that the effects envisaged by the Board may occur, it seems to me that some of the negative consequences envisaged by the Board might equally be expected to result from the withholding of the records. Withholding of information may contribute to a climate of secrecy and mistrust in which staff, and possibly some management, are kept in the dark about the manner in which a dispute, which was in the public domain, was ultimately resolved. I understand from the Board's CEO, who was interviewed by one of my staff in the course of this review, that neither the Board members, the Chairman of the Board, nor the Department of Health and Children were informed of the settlement terms. Furthermore, knowledge of the settlement terms was confined to a very small number of senior staff within the Board. In fairness to the Board's CEO, I must also record his statement that the handling of the dispute with Dr.. Muldoon, and its eventual settlement, was a matter entirely within the executive powers of the CEO and that he was neither required to consult with, nor seek the approval of, the Board members or the Department of Health and Children. I have no reason not to accept the CEO's statement on this matter.

The Board argues that disclosure of the terms of the settlement, "without the possibility of explaining the very complex background and numerous factors relating to the settlement, would have the real possibility of putting the Board, and indeed the other Health Boards, Hospitals and Health Agencies, at risk of substantially higher claims in the future due to the impossibility of settlement negotiations". The Board states that this "is not [a] matter which can be satisfactorily explained in view of the lengthy history in respect of Dr.. Muldoon's employment and the many issues arising therefrom ...".
I am somewhat surprised at the Board's view that the background and the factors in this case, which led to the settlement, cannot be explained adequately. I note that much of the background to this dispute is in the public domain. The background to the dispute, and the details of how that dispute came to a head, are set out in considerable detail in the 23 page High Court judgment of Mr. Justice O'Caoimh, delivered on 10 January 2000, on the application by Dr.. Muldoon for an interlocutory injunction to restrain the Board from placing him on administrative leave. I would generally expect public bodies to be capable of explaining their records, and issues referred to in them, to the public. In my view, it is reasonable to expect that the Board would be capable, or ought to be capable, of presenting information in their records, and related to their actions, in a manner which will allow any objective observer to draw accurate and balanced conclusions.

The Board is concerned about the possibility of higher claims being made in the future if these records are released. I accept that knowledge of previous awards or settlements may influence the expectations of future litigants, albeit not always in the manner envisaged by the Board. Informal benchmark payments arising in redundancy, loss of earnings or equality cases are an established feature of industrial relations. In many instances they serve to moderate claims and to encourage more realistic expectations on the part of claimants. In my view, the amount of an award or the terms of settlement in any given case will depend on the facts of that case. Where a case is settled, the amount or terms of the settlement will depend on the nature of the facts/merits arising in that case. It is reasonable to expect that future claims will depend on the facts and on the terms that might reasonably be expected to be achieved (either through settlement or adjudication) based on those facts or circumstances. In any event, the Board's concern has to be for the actual settlement made in any future case as opposed to what might be claimed initially. I would expect the Board to be able to justify the terms of any settlement reached by it and payable out of the public purse.

For the purposes of this review, I must have regard to the facts of this case; such facts are specific to this case. I have taken account of the contents of the records at issue, of the fact that they relate to matters which transpired almost four years ago, of the very specific nature of the dispute and its background, of the identity of the parties and the extent of the information already in the public domain. I accept that release of the records will not be without consequence or effect or may be regarded as resulting in an additional burden from the Board's point of view. However, I am not satisfied that it is reasonable to expect that such effect or burden would amount to a significant adverse effect on the Board's performance of its functions relating to management. I find that section 21(1)(b) does not apply.

Section 21(1)(c)

Section 21(1)(c) 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 ...

"(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."

The Board contends that, while each settlement is unique to the parties involved, release of the position adopted by the Board, and the terms upon which the Board agreed the settlement in this case, could undermine the Board in similar cases in the future. The Board argues that it is highly probable that there will be proceedings on behalf of other persons seeking the same reliefs as those sought by Dr. Muldoon. It argues that the settlement in this case resulted from negotiations between lawyers for the parties and that the terms agreed disclose the positions taken by the parties in those negotiations.

Section 21(1)(c) concerns positions taken, or to be taken, for the purpose of any negotiations. It is clear that release of the records within the scope of this review would disclose the final settlement terms agreed between the parties. This, however, is quite different from saying that release of these records would disclose details of any negotiations that may have occurred leading to the settlement. I am satisfied that the records in this case concern the outcome of negotiations and do not concern positions taken for the purpose of negotiation. My predecessor examined the application of section 21(1)(c) in Mr X and the Department of Justice, Equality and Law Reform Case Number 000257, 14 November 2001. In that case, one of the records at issue was a document prepared as the Irish position in response to a final opinion of the European Commission and forwarded to the Commission; the Department of Justice, Equality and Law Reform claimed that this record was exempt on the basis of section 21(1)(c), notwithstanding that it represented a final position as opposed to an interim or negotiating position. My predecessor commented as follows in relation to this claim:

"I have considered whether access to the material in this case could accurately be described as disclosing positions taken, etc. for the purpose of any negotiations involving the Department.

The Oxford English Dictionary defines 'negotiation' as 'the action or business of negotiating or making terms with others'. It goes on to define the verb 'negotiate' as 'to hold communication or conference (with another) for the purpose of arranging some matter by mutual agreement; to discuss a matter with a view to some settlement or compromise'...."

My predecessor commented further:

"...the document does not contain any proposal for settlement or compromise. It does not contain any indications of 'fall-back' positions or other information created for the purpose of negotiations. The document does not indicate the Department's negotiating strategy, rather it was prepared as the Irish position in response to an opinion from the Commission and was forwarded to the Commission on that basis...."

I am satisfied that the records at issue in this case do not contain indications of 'fall-back' positions, an opening position taken or a position taken with a view to further negotiation. I am satisfied that they do not indicate the negotiating strategy adopted by the Board; rather, they disclose the final settlement terms as agreed in the particular case of Dr. Muldoon. By definition, these records disclose an outcome agreed between the parties rather than the negotiating positions of either of the parties.

In my view, the purpose of section 21(1)(c) is to protect the strategies or positions considered or adopted by a public body with a view to reaching an agreement. It is the undisclosed strategies, positions or alternatives that the provision seeks to protect. It is designed to protect negotiation positions or plans from being disclosed directly or indirectly to other parties in the current or other negotiations. Once agreement is reached, the terms of the agreement or the final outcome of the negotiations are known to the other parties to the negotiations. I do not accept that disclosure of the final terms of settlement agreed, as opposed to details of any negotiations that may or may not have occurred leading to settlement, is exempt pursuant to section 21(1)(c). I consider that the records in this case do not disclose positions, plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations within the meaning of section 21(1)(c).

I am satisfied that neither section 21(1)(b) or 21(1)(c) apply in this case. Even if these provisions or either of them applied, I would still have to consider the application of the public interest at section 21(2). While it is not strictly necessary to do so, for the sake of completeness I deal below with the public interest test contained in section 21(2) of the FOI Act.

Public Interest

Section 21(2) provides that the exemption provided for in section 21(1) does not apply where "the public interest would, on balance, be better served by granting than by refusing to grant the request ...".

The Board states that, in relation to the public interest test, it identified the public's right to know as an argument favouring release of the records; the argument it identified in favour of refusing the records is the public interest in protecting the position of Dr.. Muldoon vis à vis the public given that he continues to practice as a medical consultant in a private capacity. The Board contends that the balance of the public interest argument favours non-disclosure of the terms of the settlements. It also made a public interest argument in respect of the protection of the individual whose name is mentioned in Record 2. As explained in the Scope section above, this name is not being sought by you and the question of identifying this individual does not arise for the purposes of this review.

In the course of this review my Office has sent five substantive letters, and two reminder letters, to Dr. Muldoon and/or his solicitors; in addition, my staff had two telephone discussions with Dr. Muldoon's solicitors and one telephone contact with Dr. Muldoon himself. In response, my Office received one letter from the solicitors, simply confirming that they act for Dr. Muldoon, and one letter from Dr. Muldoon himself dated 6 January 2004. In writing this letter of 6 January 2004, Dr. Muldoon and/or his solicitors would have been aware of all of the arguments being relied upon by the Board in its decision to refuse your request. Dr. Muldoon and/or his solicitors would also have been aware in some detail of the preliminary views of my investigator which, at that stage, tended towards the release of the records being sought. Neither in his letter of 6 January 2004 nor otherwise, did Dr. Muldoon or his solicitors express any view as to whether the records should be released or as to whether he objected to their release. However, it is clear from Dr. Muldoon's letter that it is the past actions of the Board itself, rather than any consequence of release of the records at issue here, which he regards as having been to his detriment. Furthermore, he commented that he was "very annoyed having read the reasons the North Eastern Health Board are using to object to the release of the legal and financial settlement." I am satisfied, in the light of what Dr. Muldoon has actually said and in the light of his having opted not to express an explicit view as to whether release of these records would be to his detriment, that he is not concerned that release of the records would serve to damage his professional or personal reputation. In this particular context, accordingly, I find little merit in the Board's argument that the balance of the public interest favours the refusal of the records on the grounds that refusal serves to protect the public reputation of Dr. Muldoon. It may even be argued that release of these records would be to his benefit rather than to his detriment.

A further consideration is that there has been a certain level of media coverage of the dispute and of the settlement. For example, an article in The Irish Mirror of 5 October 2000 purports to disclose the terms (or some of the terms) on which Dr. Muldoon's legal actions against the Board were settled. The matter has also, as mentioned above, been before the courts by way of an application for an interlocutory injunction and this has been the subject of media reporting. In all of these circumstances, I find in this case that the public interest served by respecting the public's right to know takes precedence over any public interest which might be served by withholding the records with a view to protecting Dr. Muldoon's reputation.

Other Public Interest Considerations

The Board contends that it is highly probable that there will be further proceedings on behalf of others seeking the same reliefs as those sought by Dr. Muldoon. It argues that release of these records could put the Board at risk of substantially higher claims in such other cases. It argues that a prohibition on confidentiality clauses would be a major inhibition on the resolution of disputes. I accept that there is a public interest in avoiding undue or unfair prejudice to public bodies in current and future proceedings or claims against them. I accept that the release of the records in this case will not be without consequence. It is possible that knowledge of the settlement in this case may influence the expectations of future litigants; although, as noted above in the context of section 21(1)(b), such knowledge may have a moderating effect just as much an inflationary effect. However, I accept that a certain weight attaches to this as a public interest factor favouring the refusal of access.

However, in considering any potential harm to current or future proceedings or claims were the records in this case to be released, I must take account of the unique circumstances which gave rise to this case and of the fact that the settlements were made almost four years ago. While the Board argues that other persons may seek the same reliefs, it seems to me that the facts and history of this case are somewhat unique. I note the view of the Board's CEO that the settlement achieved in this case represented the most satisfactory resolution of the matter. I accept that release of information in this case may result in certain analysis, deductions or expectations on the part of others, including potential litigants. The Board may consider this to be a burden. However, this does not mean that the public interest would not be served by release. It is in the public interest that the Board is free to exercise its functions in an effective and efficient manner. The Board may expect to be free to act as it sees fit or expedient. However, the public interest also requires that the Board, as a public body, acts fairly and is subject to public scrutiny. For these reasons, I am of the view that the Board's freedom in this respect is not quite the same as that of individuals or companies operating in the private, commercial sphere. In my view, these factors reduce the weight to be attached to the public interest in refusing access to the records.

I am also of the view that the public interest in openness and transparency in the expenditure of public money is a very significant public interest favouring release in this case. The Board argues that, in relation to the expenditure of public money, the CEO of the Board (who is the accountable officer) formed the view that the settlements represented the best resolution of the matter having considered legal advice and all of the financial and other implications for the Board and its delivery of health services. The Board says that its Financial Statements for the relevant years have been audited by the Comptroller and Auditor General (C&AG), have been published and are open to scrutiny by the Oireachtas.

While I acknowledge the roles of the C&AG and of the Oireachtas in relation to matters of public expenditure and in relation to the Board's accounts, I feel nevertheless that there is a positive public interest served by the disclosure of details of public expenditure, including the settlement expenditure in this case. The existing system of audit and scrutiny provides certain safeguards but this is not an argument against further such safeguards, including public disclosure of the details of public spending.

I understand from the Board's CEO, who was interviewed by one of my staff in the course of this review, that the "paper trail" in relation to the conduct of the negotiations leading to the settlements, and in relation to the implementation of the settlement terms, is rather sparse. This, I understand, is partly due to some unusual circumstances pertaining at the time of the settlement and partly a reflection of the CEO's intention that knowledge of the details of the settlements should be restricted within the Board itself. For example, when this review commenced, copies of the actual settlements were not held with the Board's own administrative or financial records; they were held "off site" by the Board's solicitors.

I understand from the CEO that, in the course of the auditing of the Board's accounts for the relevant years, the matter of the settlements in this case was not notified to the C&AG's Office. I understand that there was no obligation on the Board to notify the C&AG's Office in this regard. I understand also that the matter of these settlements was not raised by the C&AG's Office in the course of these audits. Again, I recognise that in conducting such an audit the C&AG's Office is in a position to check on a sample only of the financial transactions conducted in the year in question.

I am aware, also, that in addition to his traditional audit functions, the C&AG has the statutory power to examine economy and efficiency in the use of resources and the effectiveness of certain management systems - the so-called "value for money audit mandate". [section 9 of the Comptroller and Auditor General (Amendment) Act, 1993]. However, it does seem from the information available to me that the matter of these settlements, from a "value for money" point of view, has not been considered specifically by the C&AG's Office. Thus, in the absence of specific consideration of these settlements, either from a financial or "value for money" perspective, it seems to me that the case for safeguards additional to those mentioned above is even stronger. In making these comments, I should emphasise that nothing in this paragraph is to be taken as reflecting negatively on the actions of the Board or of the C&AG's Office.

I agree with the comments of my predecessor in the case of Mr Richard Oakley, the Sunday Tribune newspaper and the Office of the Houses of the Oireachtas Case Number 99168, 3 OIC Dec. 26, 39 (1999):

"There are existing mechanisms designed to ensure accountability in relation to the expenditure of public funds ... On a general level, I do not accept that the existence of current safeguards in relation to public expenditure means that there is no public interest in creating further safeguards. The very existence of secrecy carries with it the scope for abuse. In contrast, openness in relation to public expenditure is an important additional safeguard against abuses of all kind. I consider that the public interest in openness about public expenditure is of very great significance."

It is the case that the settlement terms at issue here have been kept secret and, as my predecessor pointed out in general terms (above), this carries with it the possibility of abuse. In the present case, I have no grounds for thinking that there has been any abuse of position by any of the parties concerned. In fairness, it is important that I make this perfectly clear. However, the scope for such abuse was there. In essence, the CEO of a public body and a senior member of staff of that body have agreed to settle a dispute on terms which are substantial from the public body's point of view. The details of that settlement have not been disclosed to the governing authority of the public body, to the Government Department with which the public body has a reporting relationship, nor apparently have the details come under scrutiny in the context of external audit. It is the case that the terms of the settlement came before the High Court and it may be argued that this represents an additional accountability mechanism. However, for reasons which are set out below in relation to the application of section 22(1)(b), I cannot accept that the High Court exercised any significant function in terms of accountability in relation to the expenditure of public funds. In effect, the fact that the settlement terms have been kept secret in this case means that the scope for abuse has not been mitigated by the operation of effective mechanisms to ensure accountability and transparency in relation to the expenditure of public funds.

While it is important that the Board is free to exercise its functions without undue interference, the Board should be aware that the financial implications of the settlement terms are borne ultimately by the taxpayer. Where settlements reached by public bodies involve significant financial outlay, there is a very strong public interest in members of the public being aware of the terms of the settlement and being able to satisfy themselves that the settlement represented a fair outcome to the dispute. In my view there is a public interest in the public knowing the full extent of the cost of the settlement terms. Ultimately, it is the tax-payer who is paying.

I also consider that there is a strong public interest in revealing how public bodies carry out their functions in cases such as this, including functions in relation to management, employment of staff, industrial relations and the resolution of disputes with staff. Whereas some of the Board's actions in this case may be widely known and in the public domain, the full details of the outcome of this dispute are not known. In my view, the public interest in openness and transparency in public management matters of this nature, and in settlements or agreements reached by public bodies, is strong. The withholding of information can contribute to a climate of secrecy or allegations of bias, corruption or mismanagement.

In my view, given the nature and background of this dispute between Dr. Muldoon and the Board, the information at issue regarding the resolving of that dispute is a matter which is of 'real public concern'. It is fair to say that in recent years few issues of domestic public policy have attracted such attention and concern, and been the subject of such extensive public debate, as has the delivery of public health services. Within the public health service, the issue of hospital services has been of paramount interest. This concern and interest in the quality and extent of hospital services is, perhaps, nowhere more prevalent than in the region served by the North Eastern Health Board. Indeed, it is fair to observe that the North Eastern Health Board has, in particular, been the subject of public scrutiny and concern arising from a number of well-publicised disputes and complaints involving hospital consultants. One such case is that involving Dr.. Muldoon, some of the details of which have already been set out above. As will be clear from these details, the issues raised in Dr.. Muldoon's case are not just matters of a personnel or an industrial relations nature; rather, they concern some fundamental aspects of the delivery of public hospital services. For example, the case raises issues of clinical independence, of the sharing of public hospital facilities as between a number of hospital consultants and their patients, as well as the issue of achieving value for money within the public health system. Furthermore, I believe it is in the public interest that members of the public understand and appreciate the difficulties facing health care managers - who, after all, are public servants attempting to serve the public interest - particularly where they attempt to balance the competing aims of ensuring best clinical practice with that of achieving the most efficient return on public expenditure on health.

The Board argues that a decision to release the records at issue here would amount to a prohibition on confidentiality clauses in the future and this would be a major inhibition on the resolution of disputes and thus contrary to the public interest. I have already made it clear that any decision to release these particular records must rest on the facts and circumstances applicable to this particular case. Such a decision would not constitute a blanket ban on confidentiality clauses where employment disputes of this nature arise. At the same time, it is very relevant to point out that the settlement in this case was reached in October 2000, some two years after the commencement of FOI for health boards. Freedom of Information is relevant to all records held by public bodies and is of particular significance to those created after the commencement of the FOI Act. The FOI regime has created new obligations on public bodies and I would expect public bodies to be fully aware of its implications. The conduct of the business of the Board (including the settlement of disputes) is at the expense of the public purse. The Board does not operate according to purely private interests and should take account of the public interest. Whereas the public interest may not always require disclosure, it is something which should now be in the minds of public bodies as a possibility.

Having considered the various factors relevant to the public interest, I am satisfied that, even if section 21(1)(b) and 21(1)(c) applied, the public interest would, on balance, be better served by granting than by refusing this request.

Section 22

Section 22(1)(a)

The Board claims that all the records are subject to legal professional privilege and that, therefore, access should be refused pursuant to section 22(1)(a). Section 22(1)(a) provides that

" A head shall refuse to grant a request under section 7 if the record concerned
(a) would be exempt from production in proceedings in a court on the ground of legal professional privilege"

My Office wrote to the Board explaining the basis upon which legal professional privilege may be claimed. Legal professional privilege enables the client maintain the confidentiality of two types of communication:

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

The Board argues that the terms of the settlements were predicated wholly upon legal advice from senior counsel, junior counsel and solicitors. It argues that the settlements and the documents recording the terms were created purely for the purpose of, and in the course of, litigation and the settlement documents were prepared by the legal advisers. The Board states that the settlement agreements were entered into on foot of legal advice sought and obtained from professional legal advisers and were created to conclude legal proceedings. It argues that legal professional privilege applies to the advices and the settlement agreements in respect of all parties to the proceedings.

The two settlement agreements were signed by the opposing parties in the proceedings. Thus, the contents were known and agreed by the parties. In such circumstances, the documents cannot be regarded as confidential communications made between the client and the legal adviser. Given the fact that such records were 'open' as between the opposing parties, I do not see how either the Board or Dr. Muldoon can claim legal professional privilege with regard to these records. I am satisfied that these two records would not be exempt from production in court proceedings on the grounds of legal professional privilege.

The records include what I may describe as internal records which comprise correspondence between the Board and its solicitors or notes/ memoranda within the Board relating to the implementation of the settlements which had been reached and the payment of costs. The Board argues that legal professional privilege applies to advices. However, these records do not contain legal advice or indicate the nature of the legal advice which may have been given. They refer only to the case /subject matter by use of a Case Number or the title to the proceedings. These records were prepared after the settlement was reached and do not comprise confidential communications the dominant purpose of which is the preparation for contemplated/pending litigation.

The remaining records comprise communications passing between the Board and Dr. Muldoon's solicitors, who were opposing parties in the litigation, and are therefore 'open' records between the parties. There is nothing to indicate that the communications were made on a "without prejudice" basis. The records do not relate to attempts to reach a settlement but rather relate to the settlement actually reached. I do not see how the records would be covered by legal professional privilege.

I find that section 22(1)(a) does not apply to the records within the scope of this review.

Section 22(1)(b)

Section 22(1)(b) provides that access shall be refused where the public body knows, or ought reasonably to have known, that disclosure of a record would constitute contempt of court. The Board did not rely on this provision in its original decision and has not specifically invoked this provision in its submissions to my Office. However, in light of the arguments made by the Board to my Office, I consider that for the sake of completeness I should address the possible application of this provision.

The Board states that a decision to disclose a matter which has been the subject of a High Court ruling would, in effect, represent an unlawful interference with the High Court Order. The Board argues that to accede to your request would be an interference in a matter which has been the subject of a High Court ruling and Order and would be a breach of the High Court Order. It submits that a decision to disclose the information in this case would place the Board in an impossible position vis-à-vis the Court in terms of its ruling. It states that this is the kernel of its argument although there are other factors to be taken into account. It submits that the striking out of the proceedings by the High Court is an acceptance by the Court of the agreement between the parties. My Office wrote to the Board stating that it seemed that its submission may possibly be an argument that the records were exempt pursuant to section 22(1)(b). The Board has not said whether or not it intended to rely on this provision.

I understand that the High Court made only one Order in relation to the matter. A copy of the High Court Order was furnished to my Office on request. Having examined the contents of the Order, I note that it stated that it appeared that a settlement had been reached and, by consent, it ordered that the Plaintiff's costs be taxed, that the Defendant pay the costs when taxed and ascertained and that the action be struck out. The Court also certified for two senior counsel.

It has not been shown that the Court made an order regarding the actual terms of the settlement or an order regarding the confidentiality of the settlement. I am satisfied that the terms of the settlement are a matter between the parties to the proceedings. In my view it has not been shown that disclosure of the records would constitute a contempt of court and I am satisfied that section 22(1)(b) does not apply.

Section 23

Section 23(1)a)(ii)

Section 23(1)(a)(ii) of the Act provides:

"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 Board decided that section 23(1)(a)(ii) applies in this case. It considers that access to the records could reasonably be expected to prejudice or impair the administration of "any law, being the civil law of the State." It decided that disclosure of confidential settlement terms agreed by parties in civil legal actions would prejudice the proper disposal of legal actions in accordance with civil law.

Section 23 is an exemption directed largely at records concerning law enforcement, security and safety. Section 23(1)(a)(ii) refers to the administration of any law which clearly indicates that, in order for it to apply, a law must be at issue. Where a public body seeks to rely on this provision, it should be in a position to identify the particular law(s) concerned. The Board referred to the civil law of the State. However, the civil law comprises a whole body of law including law relating to disputes between individuals. The Board also refers to the disposal of legal actions in accordance with civil law. In my view, this does not concern any particular law within the meaning of section 23(1)(a)(ii). The Board has not identified any particular law at issue.

The Board argues that a prohibition of confidentiality clauses, and/or the mandatory disclosure of agreements following requests under FOI, would be a major inhibition on the resolution of disputes litigated before the courts and could impede the administration of civil justice and in particular the freedom of parties to reach binding contracts with certainty as to their terms and enforceability. It is not entirely clear whether, in making these latter arguments, the Board was seeking to rely on section 23(1)(a)(ii). My Office put it to the Board that the broad matter of the "administration of civil justice" does not amount to the "administration of any law" as specified in section 23(1)(a)(ii). In its response, the Board failed to identify a law. It seems to me that it is the terms of the agreement reached between the parties in this case (not a law) which the Board is seeking to enforce. Similarly, any issue of compliance or administration appears to relate to that agreement and not to a law.

I stress, again, that a finding in this case that records are not exempt does not amount to a mandatory requirement on public bodies to disclose agreements or settlements regardless of content or background. On the other hand, it is a matter for the Board, in accordance with section 34(12)(b), to satisfy me that a decision to refuse a request is justified. In so far as the Board relied on section 23(1)(a)(ii) as the basis for refusing your request, it has failed to justify its reliance on that provision. I am satisfied that the matters referred to by the Board do not relate to the enforcement of, compliance with, or administration of any law within the meaning of section 23(1)(a)(ii). I am satisfied also that the harm envisaged by section 23(1)(a)(ii) could not reasonably be expected to occur. For these reasons, I find that section 23(1)(a)(ii) does not apply.

Section 26

The exemption at section 26 relates to information obtained in confidence. The Board relies upon section 26(1)(b) for its refusal of most of the records in this case. Section 26(1)(b) provides that a request shall be refused if:

"(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law."

In their letter to my Office of 29 March 2004, the Board's solicitors stated that the Board did not seek to rely on section 26(1) in refusing access to the three invoices for legal fees (Records 3, 4 and 9). I will therefore consider the application of section 26(1)(b) to the other records within the scope of this review, that is, to Records 1, 2, 5, 6, 6A, 7, 7A and 8. Record 2, as already mentioned, contains the name of a particular individual; you have agreed to exclude the identification of this individual from the scope of your request. Since the identity of this individual is not at issue, neither is the question of whether the Board might owe a duty of confidence to this individual. In any event, even if this individual were to be identified as a consequence of this review, I am satisfied that the Board does not owe to this individual a duty of confidence of the type protected by section 26(1)(b).

However, before addressing the application of section 26(1)(b), I will consider the application of section 26(2), as section 26(1) does not apply where the records fall within section 26(2).

Section 26(2)

Section 26(2) provides:

"(2) Subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, a public body or a person who is providing a service for a public body under a contract for services) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services."

My Office drew the Board's attention to the provisions of section 26(2) of the FOI Act. In response, the Board argued that a duty of confidence is provided for "in the court's agreement" which provided for a mutuality of confidentiality by all the parties, Dr. Muldoon, the individual named in Record 2 and the Board. The Board argues that the agreements relate to a legal matter outside the scope of Dr. Muldoon's day to day activities. I have already considered the court's role in the matter of these agreements in the context of section 22(1)(b) above and I am satisfied, for the reasons outlined above, that the agreements in this case were the agreements of the parties and not the "court's agreements".

If section 26(2) applies, the exemption at section 26(1)(b) relied upon by the Board cannot apply. In other words, section 26(1)(b) cannot apply to a record where:

1. the record has been prepared by a head, director, or member of staff of a public body, or a person who is providing a service for a public body under a contract for services; and

2. the preparation has been effected in the course of the performance by that person of his or her functions;

3. UNLESS disclosure would constitute a breach of a duty of confidence owed to a person other than a public body or head or director or member of staff of a public body or a person who is providing or provided a service for a public body under a contract for services.

1. A record prepared by a head, director, member of staff, or person who is providing a service under a contract for services.

I note that the Board provided information to my Office with regard to the preparation of certain records. However, this information related to certain records which do not fall within the scope of this review (e.g. draft documents).

My Office put it to the Board that the majority of the records within the scope of the review (including the signed terms of settlement in two High Court proceedings) were prepared by members of staff of the Board or members of the Board's legal team who were providing a service for the Board under a contract for services. The Board was informed that if, for any reason, it considered that this was incorrect, it should provide a full and detailed account of the preparation of the records to my Office. The Board, in its response, did not dispute my Office's suggestion that the records were prepared by members of staff of the Board or on behalf of the Board. It argued that the agreements provided for a mutuality of confidentiality by all the parties and related to a legal matter outside the scope of Dr. Muldoon's obligations under his contract. It argued that section 26(2) did not apply to the settlement agreements.

I am satisfied that Records 1, 2, 5, 6, 6A, 7, 7A and 8 were prepared by or on behalf of members of staff of the Board or by members of the Board's legal team.

2. Prepared in the course of the performance of his/her functions

My Office also put it to the Board that the records were prepared in the course of the performance of the functions of the staff members concerned or the members of the legal team concerned. In response, the Board did not dispute the assertion that the records were prepared by staff members or members of the legal team in the course of the performance of their functions. The Board's argument in response related to the mutuality of the confidentiality agreement by all the parties and the fact that the agreement related to a legal matter outside the scope of Dr. Muldoon's obligations under his contract and extraneous to his status as a staff member.

Having considered the matter, I am of the view that in applying this provision a distinction must be drawn between two types of record. Records 1 and 2 are the settlement agreements which were signed by Dr. Muldoon and on behalf of the Board and witnessed by the respective solicitors for the two sides. I am satisfied that these agreements were the result of input from both sides. Insofar as Dr. Muldoon or his legal representatives were involved in the preparation of these records, I am satisfied that this was not something done in the course of the performance of Dr. Muldoon's functions as a member of staff of the Board. Given the circumstances of the case, I am of the view that the preparation of these two records by or on behalf of Dr. Muldoon cannot be regarded as something falling within the course of the performance of his functions. Records 7 and 7A emanated from Dore & Co. solicitors for Dr. Muldoon, and relate to the settlement. For similar reasons, I am of the view that these records cannot be regarded as having been prepared by a member of staff of the Board in the course of the performance of his or her functions. For these reasons, I find that the requirement at 2. above has not been met with regard to Records 1,2, 7 and 7A; section 26(2) cannot apply to these records, and it is necessary to consider whether these records are exempt by virtue of section 26(1)(b).

However, the remaining records were all prepared either by staff of the Board or the Board's legal team in the course of the performance of their functions. I am satisfied that requirement 2. above has been met with regard to those records, namely Records 5, 6, 6A and 8.

3. UNLESS disclosure would constitute a breach of a duty owed to a personother thana public body etc.

This provision is of relevance only in the case of Records 5, 6, 6A and 8 in relation to which the requirements at 1. and 2. above have been met. In the case of these records, section 26(1) can only apply where disclosure would constitute a breach of a duty of confidence which is owed to someone other than a public body or head or a director, or member of staff of a public body or person providing a service for a public body under a contract for services. .

My Office put it to the Board that any duty of confidence in this case, should it exist, would be owed to a member of staff of the Board. The Board's response was that the agreement provided for a mutuality of confidentiality by all parties and it related to a legal matter outside the scope of Dr. Muldoon's day to day duties within the meaning of his contract. It argued that it was extraneous to Dr. Muldoon's obligations under his contract and extraneous to his status as a member of staff.

However, the requirement in section 26(2), that matters be in the performance of a person's functions, relates solely to the preparation of the records at issue. Section 26(2) expressly provides that the records to which it applies are records which are prepared by a head or other person (as defined in that section) "in the course of the performance of his or her functions". However, in the case of the provision at 3. above, there is no similar requirement in terms of the capacity of the person to whom the duty of confidence is owed. The provision at 3. is expressed as being directed at a person identifiable as a public body or head or director or member of 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 identification is not qualified by a further requirement that the duty of confidence be owed to such a person in his/her or its capacity as a public body or member of staff etc. of a public body. There is no requirement in this provision that any such duty be owed to a person acting in the course of the performance of his or her functions as a member of staff etc. of a public body.

In the present case, any duty of confidence which may be owed by the Board - and it remains to be determined as to whether such a duty exists - would be owed to a member of staff of a public body. For these reasons, I am satisfied that section 26(2) applies in the case of records 5,6, 6A and 8, each of which is an "internal" Board document. Where section 26(2) applies, section 26(1) does not apply. For these reasons I find that section 26(1)(b) cannot apply to records 5, 6, 6A and 8 and they are not exempt by reference to section 26.

Section 26(1)(b)

I now consider the application of section 26(1)(b) to the remaining records (No.s 1, 2, 7, 7A) which the Board claims are exempt under that provision. I have already found that, by reason of section 26(2), section 26(1) cannot apply to records 5, 6, 6A and 8; it is not, therefore, necessary for me to consider further the arguments of the Board regarding the application of section 26(1)(b) to these records. However, for the sake of completeness, I will include these records in my consideration of the application of section 26(1)(b), as claimed by the Board.

Section 26(1)(b) of the FOI Act provides as follows:

"26.(1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if ...
(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment ... or otherwise by law."

It is important to note that this exemption is applicable only where disclosure of information would constitute a breach of a duty of confidence. For there to be a breach of a duty of confidence, one would expect to be able to identify a person in respect of whom the breach has occurred and who, as a consequence, would be in a position to sustain an action for breach of that duty. Indeed, in its submission of 14 March 2002 to my Office, the Board's solicitors explained that section 26(1)(b) had been invoked because the Board considered that release of the records "would leave Dr. Muldoon with a cause of action for breach of confidence against the Board...". This view was re-iterated in the Board's direct submission made on 20 March 2002. In a submission made on 20 June 2002, the Board's solicitors refer to the existence of a "mutually agreed settlement"; in a submission made on 3 November 2003, the Board's solicitors comment that the "agreement provided for a mutuality of confidentiality by all the parties". These references to the mutual nature of the agreement have not been developed by the Board and it is not clear whether they are intended as an argument that section 26(1)(b) should operate to protect the Board's own interests as well as those of Dr. Muldoon.

For reasons which are set out in some detail later in this decision, I take the view that section 26(1)(b) operates to protect the interests of the party to whom the duty of confidence is owed by the public body, the subject of the FOI request. I find it difficult to accept that section 26(1)(b) should operate solely to protect the public body, the subject of the FOI request.

Accordingly, I deal now with section 26(1)(b) in terms of the Board's relationship with Dr. Muldoon. For the purposes of this aspect of the review it must be established (1) that a duty of confidence exists vis à vis Dr. Muldoon and, if so, (2) that disclosure of the records by the Board would, in the circumstances of this case, amount to a breach of a duty of confidence owed to Dr. Muldoon.

Duty of Confidence

The Board argues that the information in the agreements has the necessary quality of confidence. I accept that this is the case. Furthermore, the two settlement agreements contain clauses to the effect that the terms of the agreements are confidential to the parties. I am satisfied that these clauses provide for "a duty of confidence provided for by a provision of an agreement" within the meaning of section 26(1)(b). Given that the information contained in the other records at issue, in the context of section 26(1)(b), discloses to a greater or lesser extent the terms of the settlements, I am satisfied that the duty of confidence potentially extends to all of these records (Records 1, 2, 5, 6, 6A, 7, 7A, 8).

Breach of Duty of Confidence

It is important to recognise that the duty of confidence at issue here is one based on contract. While the Courts have dealt on many occasions with the issue of a breach of a contractual duty of confidence, this remains a complex area of law. I have not been able to identify any case law arising from a context in any way similar to that which applies in the present case i.e., the resolution of an employment dispute within a health board where that dispute involves issues of principle relating to the management of the public health service.

On the face of it, disclosure by the Board of the records at issue here does break one of the terms of the agreement between Dr. Muldoon and the Board and, on this basis, would amount to a breach of a contractual duty of confidence. However, the question must be asked whether all such disclosures will necessarily amount to a breach of the contractual duty of confidence owed by the Board to Dr. Muldoon. Are there circumstances in which such disclosure will not result in a breach of the contractual duty of confidence owed by the Board to Dr. Muldoon? One instance of disclosure not resulting in such a breach is where disclosure is required by law; another instance is where such disclosure is authorised by Dr. Muldoon and where, in effect, he has waived his contractual right to confidentiality. For the reasons set out in some detail below it seems to me that, in the context of the very particular circumstances of your FOI request and of this review, Dr. Muldoon has waived his contractual right to confidentiality and that disclosure of the records at issue would not "leave Dr. Muldoon with a cause of action for breach of confidence against the Board...".

I have already detailed the communications between my Office and Dr. Muldoon and his solicitors in the course of this review. As neither Dr. Muldoon nor his solicitor had replied in any substantive way to my Office's earlier communications, I wrote directly to Dr. Muldoon on 10 March 2004. In my letter I explained that my contact, and the earlier contacts, were in the context of my fulfilling my statutory duty under the FOI Act; I asked (again) whether Dr. Muldoon would say whether or not he was prepared to release the Board from the duty of confidence which it believed it owed to him and I asked if he would say whether he would regard release by the Board of the terms of the settlements as being detrimental to his interests. I included the following in my letter of 10 March 2004:

"I regard it as very important that you should inform me of your position in relation to the ... items above. It seems reasonable to conclude that, if you regard release of the settlement terms as being detrimental to your interests, you will wish to inform me of this fact. The corollary is that, if you choose not to reply to this letter, I am entitled to infer that you do not regard release as detrimental and that you are not opposed to the records being released to the requester concerned. ...

I look forward to hearing from you by Friday, 26 March 2004 at the latest. In the event that we do not have a reply from you by then, I will feel free to conclude that you do not regard release of the records in question as detrimental and that you are not opposed to the records being released to the requester concerned."

In the event, Dr. Muldoon opted not to respond to my letter but I am aware, from a subsequent telephone call to him by one of my staff, that he did receive my letter and that he was aware of the implications of his opting not to reply. I am also aware that in the one letter (dated 6 January 2004) received from him in the course of this review, Dr. Muldoon expressed serious annoyance with some of the reasons being given by the Board for refusing your request. I think it is reasonable to infer, taking everything together, that Dr. Muldoon does not agree with the Board's position that the records should be refused in order to protect his position.

I find as a matter of fact that, while Dr. Muldoon has not explicitly authorised the disclosure of the records in the context of this FOI case, by his conduct he has made it clear that he does not oppose such disclosure and, indeed, made it clear that he accepts such disclosure would not amount to a breach of the duty of confidence which the Board otherwise owes to him in respect of the settlement terms.

I appreciate that in the normal course it may not be reasonable to infer agreement simply because of the failure of a party to express disagreement explicitly. In the circumstances of this case, however, I am satisfied that I am justified in drawing this inference from the facts as I have found them.. There are two specific reasons for taking this view in this particular case:

1. One consideration is that the FOI Act confers a right of access on members of the public to records held by public bodies; this is not an absolute right as it is subject to certain restrictions. Nevertheless, this is a substantial right and the Act is constructed on the basis of a presumption of a right of access; though this presumption is rebuttable. Mr. Justice McKechnie, in his judgment in Deely v. The Information Commissioner (2001) IEHC 91, commented in relation to the FOI Act that "its passing, it is no exaggeration to say, affected in a most profound way, access by members of the public to records held by public bodies..."; he went on to say that the "purpose of its enactment was to create accountability and transparency and this to an extent not heretofore contemplated let alone available to the general public." Mr. Justice McKechnie further described FOI as "on any view, a piece of legislation independent in existence, forceful in its aim and liberal in outlook and philosophy." Because FOI confers rights, there is an onus on any party seeking to oppose those rights to articulate, in as full a fashion as possible, the basis for such opposition. Accordingly, and in the context of determining your rights as a requester, I believe there was an onus on Dr. Muldoon to state positively that he opposed release of the records if that was his intended position.

2. The second consideration is related to the first. In conducting a review under section 34(2) of the FOI Act, I am adjudicating on the rights of the FOI requester. This amounts to the conduct of a quasi-judicial exercise, the outcome of which (my decision) is legally binding on the parties concerned. Where third parties are consulted by me in the course of the conduct of a review under section 34(2) of the FOI Act, this generally is because their interests may be affected by the outcome of the review. Equally, it is the case that the interests of the original requester (yourself in this instance) and of the public body concerned will be affected by the outcome of the review. While there is no statutory requirement for such third parties to participate in my review, there must be a strong expectation that they will do so in order to facilitate the exercise by me of my statutory function. At the very least, a third party who fails to engage with my review, despite repeated invitations to do so, and who has been advised that such failure to engage will result in the drawing of certain conclusions, cannot have any reasonable basis for subsequently objecting to the conclusions drawn.

In the light of the analysis above, including my finding of fact in relation to the position of Dr. Muldoon, I find that disclosure of the information contained in the records at issue in this review would not constitute a breach of the contractual duty of confidence owed by the Board to Dr. Muldoon. However, in the circumstances of this case, it is necessary to consider further whether section 26(1)(b) applies.

Mutuality of Confidentiality - Does Section 26(1)(b) Protect the Board?

While the Board refers to a mutuality of confidentiality, it is nevertheless clear that the parties whose interests are at issue in this case are the Board and Dr. Muldoon. (I am satisfied it is not necessary to consider here the interests of the party named in Record 2 since your request, as refined in the course of this review, excludes references to that party from consideration.) The matter to be considered now is whether section 26(1)(b) may operate to protect the interests of the Board.

The overall scheme of the FOI Act suggests that, as a general proposition, section 26 is not intended to protect the confidentiality interests of public bodies. Part 111 of the Act sets out the exemptions which operate to modify the underlying presumption in the Act that records held by public bodies will be released. The exemptions at sections 19 - 24 and sections 30 and 31 may be characterised as designed to protect the interests of public bodies. Section 25 deals with a procedural matter and section 32 cannot be characterised as designed to protect the interests of any one sector in particular . Sections 26, 27 and 28 are often referred to as third party exemptions, intended to protect the interests of persons other than public bodies. The language within section 26 itself, especially in sub-section (2), supports the view that the protection of the section is directed at entities other than public bodies; or, at least, the section will protect the interests of a public body only where those interests co-incide with other interests which require to be protected.

In the case of section 26(1)(a), which deals with information which has been given in confidence to a public body, included in that provision is a clause which recognises the need to exempt information where, inter alia, "it is of importance to the body that such further similar information ... should continue to be given to the body ...". While this provision may seem to be a protection for the interests of public bodies, the confidentiality being protected is that of the confiding party, not that of the public body. This provision recognises the need, in certain circumstances, for public bodies to honour confidentiality arrangements with third parties because it is of importance to the public body - presumably for the purposes of fulfilling it functions - that such information should continue to be made available. This is a protection for third parties who play a vital role in the information-gathering function of a public body; it is not a protection solely of the interests of a public body.

In the case of section 26(1)(b), this provision is activated when disclosure of information would "constitute a breach of a duty of confidence". Where the public body is the party making the disclosure, and where it is clear there is no other party in a position to take an action for a breach of a duty of confidence arising from that disclosure, the only party potentially in a position to take such an action is the public body itself (provided it is a party to the confidentiality arrangement.). It seems to me quite untenable that a public body would take such action against itself. In any event, I take the view that the intention of the Oireachtas was that section 26(1)(b) should protect the interests of parties other than the public body concerned. This view is bolstered by the existence of a range of exemptions (as described above) designed specifically to protect the interests of public bodies.

Having regard to the FOI Act in its entirety, I take the view that the protection contained in section 26 is not intended to protect solely the interests of a public body; rather, that protection is directed at entities other than public bodies and it will operate to protect the interests of a public body only where those interests co-incide with other interests which require to be protected. All of the essential interests of public bodies are already adequately protected by sections 19 - 24 and sections 30 and 31. Indeed, sections 21, 22 and 23 have already been considered in this decision. In the present case, the invoking of section 26(1)(b) by the Board is in a context in which it is the Board's interests alone which are sought to be protected and those interests, in this context, do not co-incide with other interests which require to be protected.

My view that the protection of section 26 is not available to public bodies is in line with the approach under the Queensland FOI legislation on which the Irish FOI Act is, to a very considerable extent, based. I would refer to the comments of the Queensland Information Commissioner in the Queensland case 94001 "B" -v- Brisbane North Regional Health Authority (1994) 1QAR 279 regarding a public body's reliance on section 46(1)(a) of the Queensland statute [which is broadly similar to our section 26(1)(b)] where the breach of confidence action would hypothetically be brought by the government body. The Queensland Commissioner said that reliance on that provision:

"does not, in my opinion, sit easily with the scheme of the FOI Act, where the disclosure being contemplated is to be made by an officer who is authorised ...to disclose information in response to applications for access made under... the FOI Act."

The Queensland Commissioner went on to say:

"...a disclosure by a government agency of confidential information generated within that government agency, or within the legal entity of which it is a part... would not in my opinion "found an action for breach of confidence" within the meaning of s.46(1)(a) of the FOI Act."

Confidentiality Agreements in an Era of FOI

In your application for review you stated that it appeared that the Board had entered voluntarily into an agreement not to disclose details of the settlements and was now relying on those agreements to refuse information under the FOI Act. You regarded this as a deliberate circumvention of the FOI Act. You also argued that the use of such clauses, with the intention of deliberately placing information beyond FOI, can be overturned in the public interest. I am not satisfied that there was any deliberate intention on the part of the Board to put the settlement terms beyond the reach of the FOI Act. However, I have concerns about the use of confidentiality clauses by public bodies since the advent of Freedom of Information and I believe that FOI imposes some restrictions on the use of such confidentiality clauses.

The concept of restriction on a person's capacity to enter into a duty of confidence is already established. In her book The Legal Implications of Disclosure in the Public Interest (Second Edition), Sweet & Maxwell, London, 1994, Yvonne Cripps deals with the operation of the public interest defence to a breach of a duty of confidence, where that duty is regarded as based on contract. She comments, at Page 29:

"An examination of the case law in this area will reveal that when a court describes the action for breach of confidence in terms of contractual obligations it is more likely to hold that an obligation of confidence never existed in relation to certain types of information. That result is achieved by asserting that a contractual obligation to refrain from disclosing information that the public has an interest in receiving would be contrary to public policy."

These agreements were reached by the Board after the passing of FOI legislation in 1997. The case law in Ireland relating to duty of confidence has not, to date, been in the context of records which are potentially accessible under the Freedom of Information Acts. The issue of the use of confidentiality clauses in a context similar to FOI has been addressed by the New Zealand High Court in the context of similar legislation granting a general right of access to records (Local Government and Official Information and Meetings Act, 1997). In the case of Wyatt Company (NZ) Ltd. -v- Queenstown Lakes District Council [1991] 2 NZLR 180 Mr J. Jeffries made the following comments regarding the use of a confidentiality clause in the context of that legislation:

"There cannot be allowed to develop in this country a kind of commercial Alsatia beyond the reach of statute. Confidentiality is not an absolute concept admitting of no exceptions... It is an implied term of any contract between individuals that the promises of their contract will be subject to statutory obligations. At all times the applicant would or should have been aware of the provisions of the Act and in particular section 7, which effectively excludes contracts on confidentiality preventing release of the information."

In the case of "B" -v- Brisbane North Regional Health Authority referred to above, the Queensland Information Commissioner expressed the view that a government agency cannot by agreement or conduct bind itself so as to guarantee that confidential information imparted to it will not be disclosed under the FOI Act. While I accept that there are differences between the New Zealand and Queensland legislations and our own FOI legislation, the issue of public bodies entering into confidentiality agreements in an era of FOI requires to be considered. I accept that section 26(1)(b) of the FOI Act allows for the existence of such agreements. However, where such agreements are subsequently relied upon to protect the interests of the public body only, I do not believe that section 26(1)(b) may be invoked.

My predecessor has stated in previous decisions that one would have to question, having regard to the coming into force of the FOI Acts, how any public body could have an understanding that details of its expenditure of public money would be kept confidential. In his decision in Case Numbers 99591, 99594, 99596, 99598 and 99606, my predecessor stated:

" I do not consider that public bodies can reasonably be expected to treat information relating to the payment of public money to an individual as confidential unless the circumstances show that the information is of an intrinsically private nature. "

In the present case, and as outlined earlier, the records do not concern a matter which is of an intrinsically private nature. I accept that these comments of my predecessor were not made in a context where there existed an express duty of confidence provided for by way of an agreement. However, I am of the view that they reflect an important dimension which public bodies should now incorporate into their consideration of how confidentiality would and should apply to matters relating to the expenditure of public money.

I would make the following general comments. The advent of FOI has changed the context in which public bodies, subject to FOI, conduct their business. This new context is relevant in situations where public bodies seek to enter into confidentiality agreements with other parties. In my view, if it can be shown and if I were to be satisfied that a public body had included a confidentiality clause with the deliberate purpose of circumventing the FOI Act and ousting its jurisdiction, this would represent a very significant issue in the consideration of whether the information ought to be disclosed in the public interest. The Board has argued that the confidentiality clauses in the present case were agreed between counsel for the parties, on the basis of their instructions, as confidentiality was of paramount importance to all parties. I accept that confidentiality clauses may sometimes be included in the terms of settlement of disputes, particularly employment disputes. However, given the importance of openness and accountability in the public service, and given the fact that at the time these agreements were concluded the FOI Act, 1997 had been in force for over two years (and had been passed for over three and a half years), one might reasonably have expected that the Board would have adverted to the relevance of FOI in seeking the inclusion of a confidentiality clause in the agreements.

In this regard it is reasonable to expect that the Board, in entering into the agreements with Dr. Muldoon, would have been aware of the advice of the Central Policy Unit (CPU) of the Department of Finance in relation to confidentiality clauses in an era of Freedom of Information. Central Policy Unit Notice No. 9, dated 9 April 1998, deals specifically with the area of public procurement but the guidance is relevant in the wider area of confidentiality agreements. Notice No. 9 advises public bodies that, with the advent of FOI, they cannot give any guarantees of absolute confidentiality. It advises public bodies that, from the outset, they should advise tendering parties of the type of material which is likely to be released; even where they identify material received as material which they propose to hold as confidential, public bodies (according to CPU) should make clear that this agreement is subject to the body's "obligations under law, including the Freedom of Information Act, which comes into force on 21 April, 1998." Even where such explicit notice is not given, it seems to me that any confidentiality agreements entered into by a public body as a substantive, primary party is always subject to the requirements of the FOI Act. However, I do not believe it is the case that the confidentiality clauses in these agreements were included with the deliberate purpose of circumventing the FOI Act.

The Board has argued that disclosure of the information in this case would remove legal certainty and seek to change the terms of agreements after their conclusion and the resolution of the proceedings. I am satisfied that, in effect, the FOI Act creates implied terms which bear on the capacity of public bodies to enter into confidentiality agreements. Public bodies, including in this case the Board, ought to be aware of the implications of the provisions of the FOI Act.

In reaching this conclusion, I wish to make it very clear that this is not to say that the advent of FOI has rendered it impossible for public bodies to enter into a duty of confidence or to honour such duties (whether based on equity or on contract). This decision deals with a very specific set of circumstances in which:

• the interests to be protected are those of the public body itself;
• where the material at issue is intrinsically significant in terms of the public interest;
• where (in my view) there is no significant damage to the public interest, or to any third party interest, by virtue of releasing the material; and
• where there is no compelling reason to maintain secrecy in relation to the material at issue.

There will be many instances in which public bodies will be justified in accepting a duty of confidence and in which section 26(1)(b) of the FOI Act may validly apply in the event of an FOI request for records. For example, and in the context of health boards, information received in confidence from third parties in the context of child protection is likely to be protected by section 26(1)(b) of the FOI Act. This is even more likely to be so in situations where a health board receives information from a third party (not a public body) where that third party is already bound by a duty of confidence in relation to another party; for example, where a teacher is told, in confidence, of the abuse or neglect of a child and the teacher passes on that information to a health board. However, it is important to say that each such case would have to be considered on its own facts and circumstances and that it is not possible to identify specific scenarios in which acceptance of a duty of confidence will invariably be justified.

Summary Position Regarding Section 26

In the case of Records 1, 2, 5, 6, 6A, 7, 7A, 8 I take the view that release of these records would not constitute a breach of a duty of confidence owed to Dr.. Muldoon. I take the view, while accepting there was a mutuality of confidentiality involved in the agreements, that the only other party in respect of whom a breach of a duty of confidence might be claimed is the Board itself. I take the view that section 26 is not intended as an exemption available to the Board in order to protect its own interests only. Finally, I take the view that the enactment of the FOI Act has a bearing on the capacity of public bodies to enter into legally binding confidentiality agreements. While I am not saying that FOI renders all such agreements inoperable, or that public bodies cannot now enter into such agreements, I take the view that such agreements entered into by public bodies are now subject to the implied terms which arise from the FOI Act.

Having considered the matter very carefully, I find that section 26(1)(b) does not apply to Records 1, 2, 5, 6, 6A, 7, 7A or 8.

Section 27

The Board relied on section 27(1)(b) and 27(1)(c) for its refusal to grant access to the invoices for legal fees (records 3, 4 and 9). It also submitted that access to the remaining records should be refused by reference to section 27(1)(b) in view of the effect on Dr. Muldoon's interests and by reference to section 27(1)(c) in view of the effect of release on the interests of the individual mentioned in Record No. 2. I address these arguments below.

Section 27(1)(b)

Invoices for legal fees

My Office sought to clarify the Board's position with regard to the release of three records being invoices for legal fees addressed to the Board from the Board's solicitors, BCM Hanby Wallace (Records 3, 4 and 9). The Board informed my Office that it was not agreeing to the release of these records. It relied upon section 27(1)(b) and 27(1)(c) for its refusal of these records.

Section 27(1)(b) 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,...."

The Board argues that because the invoices relate to legal fees charged by BCM Hanby Wallace, a firm of solicitors, and to fees charged by junior and senior counsel, they must and can only be viewed as "financial, commercial" information. It also submits that, because of the growing competitiveness within the legal profession and the public procurement legislation, resulting in increased competitive tendering for legal services, release of this information to the requester could reasonably be expected to result in material financial loss for BCM Hanby Wallace and junior and senior counsel, in that it would prejudice the competitive positions of the firm and of the individual barristers.

However, the Board has provided no information as to how such material financial loss or prejudice to the competitive positions of BCM Hanby Wallace or of the barristers could reasonably be expected to occur. The invoices in this case contain what I would describe as "top-line" information or "totals" only. They do not disclose fee structures, hourly rates, or details of what the fees do, or do not, include. Further, these records date back to 2000 and 2001 and, therefore, the information is relatively historic in nature. Even taking account of current competitive tendering, I fail to see how release of the information could be expected reasonably to result in material financial loss for BCM Hanby Wallace and counsel or how it could prejudice the competitive positions of the firm and the barristers concerned.

For these reasons, I do not consider that the requirements of section 27(1)(b) are met. However, in any event, even if those requirements were met, I would have to consider the public interest under section 27(3), to which I refer further below.

Dr. Muldoon

The Board also argues that section 27(1)(b) is relevant to Dr. Muldoon's interests. It argues that section 27(1)(b) must be considered when determining release in view of Dr. Muldoon's continued involvement in private practice; it argues that there is a potential adverse effect in relation to Dr. Muldoon given what it describes as the "inevitable further media coverage in relation to his settlement" resulting from release of the records.

Following receipt of the Board's submission on the application of section 27(1)(b), my Office wrote to Dr. Muldoon and to his solicitor drawing attention to the provision relied upon by the Board, the Board's arguments and the investigator's preliminary views. Dr. Muldoon and his solicitor were informed that, if they considered that the interests protected by section 27 were affected, they might make a submission in relation to any matter relevant to its application. A response was received from Dr. Muldoon (already referred to above) in which he said that he was "very annoyed" at the reasons being advanced by the Board under section 27 for its refusal to release the records. I have set out above the nature of my Office's contacts with Dr. Muldoon and the conclusions I have reached on the basis of these contacts. It is unnecessary to repeat these details here. In the circumstances, I consider it is reasonable to conclude that Dr. Muldoon does not oppose the release of these records and that he is not seeking to argue that release would be detrimental to him in the conduct of his business.

I have also taken account of the extent of publicity or media attention which the matter of Dr. Muldoon's dispute with the Board has received over the years. I have also taken account of the contents of the records in this case. Given the factors outlined above, I am not satisfied that the requirements of section 27(1)(b) have been met. I find, therefore, that section 27(1)(b) does not apply in relation to Dr. Muldoon's interests.

Even if I had accepted that the requirements had been met, I would have had to consider the application of section 27(3) to which I refer further below.

Section 27(1)(c)

Section 27(1)(c) 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 ...

(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates."

The invoices for legal fees

The Board argues that release of these invoices could reasonably be expected to have a prejudicial impact on current and future contractual negotiations of BCM Hanby Wallace and counsel with clients and potential clients, particularly in view of the competitive tendering processes for legal services. I have already addressed the Board's arguments with respect to the application of section 27(1)(b) to the invoices above. For the same reasons, I do not consider that the requirements of section 27(1)(c) are met. However, in any event, even if those requirements were met, I would have to consider the public interest test provided for under section 27(3).

The interests of individual named in Record No. 2

The Board argues that release of the records may have a serious impact on the personal, professional and financial situation of the individual named in Record No. 2. This individual is not named elsewhere in the records. As already noted, you have modified your request to exclude from consideration the identity of the individual named in Record No. 2. In these circumstances, I believe the interests of that individual are not at issue in this review and the matter need not be considered further. While I am constrained by section 43 in the extent of detail I can give in this regard, I am satisfied that Record No. 2, with the name of the individual appearing before the words "& the North Eastern Health Board" on line 6 deleted, is not exempt pursuant to section 27(1)(c) and I find accordingly.

Section 27(3) - the Public Interest

As stated above, even if section 27(1)(b) and (c) applied in relation to the records of legal invoices, I would have to consider the application of section 27(3). Section 27(3) provides that

"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."

I have already considered the public interest in the context of section 21(2) above. My considerations in that context are also relevant to the consideration of section 27(3). I would add also with particular reference to the three invoices for legal fees that, whereas there is a public interest in protecting the legitimate commercial interests of industry and of commercial bodies and firms, there is a strong public interest in openness and accountability in the area of public spending. Openness in relation to public expenditure provides a useful mechanism for ensuring value for money is achieved and for preventing waste, fraud and corruption.

For these reasons, even if section 27(1)(b) or 27(1)(c) did apply, I am satisfied that the public interest would, on balance, be better served by granting than by refusing to grant the request for access to these records.

Section 28

Section 28(1)

Section 28(1) provides that a request shall be refused where access to the record concerned would involve the disclosure of personal information. The Board claims that the court proceedings in this case involved the reputations of individuals, particularly Dr. Muldoon and the individual named in Record No. 2. It also claimed that the individual named in Record No. 2 has a right to keep his/her affairs private.

As already noted in this decision, the identity of the individual named in Record No. 2 is not being sought by you. In any event, given the position of that individual, I am not satisfied that the reference in Record No. 2 to that individual constitutes personal information. There is, accordingly, no question of the release of personal information of that individual. I find that section 28(1) does not apply in relation to that individual.

In your application for review to my Office you argued that the information relating to Dr. Muldoon was information relating to his office or the terms or its functions or the terms upon which he holds or held office. I take it this is a reference by you to the definition of "personal information" at section 2 of the FOI Act and, in particular, to the first of the three exceptions to that definition contained in section 2. In my view, the terms upon which the settlements were reached do not fall within the exception to the definition of "personal information" provided for in section 2 of the Act. I am satisfied that, as the information relates to the settlement of a dispute and the terms of the settlement relate to particular claims made in civil proceedings brought by Dr. Muldoon against the Board, the information cannot be considered information relating to the office, position, or functions of Dr. Muldoon or the terms upon which he holds or held office. I am satisfied that access to the records would involve the disclosure of personal information about Dr. Muldoon. However, as I have outlined above, Dr. Muldoon has not informed this Office of any objection to the release of the records. I am satisfied that I may reasonably assume that, if Dr. Muldoon had an objection to release, he would have notified my Office of his objection. However, as he has not consented in writing to the release of these records - as is necessary for section 28(2)(b) to apply - I will consider the application of the public interest provision in section 28(5)(a).

The public interest

Section 28(5)(a) provides that where section 28(1) applies the request may nevertheless be granted where, on balance, 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. The Board states that it considered the public's right to know and the right of Dr. Muldoon with regard to his standing in the public eye, bearing in mind that he continues to practice in a private capacity. It found that the public interest favoured non-disclosure of the terms of the settlements.

In considering the application of the public interest in upholding the right to privacy, I have taken account of the fact that Dr. Muldoon, while not consenting explicitly to the release of the information, has not notified this Office that he objects to the release of the information. Section 28 is designed to protect the privacy of individuals. In my view, the degree of invasion of the privacy of individuals and the degree of sensitivity of the information are relevant factors in considering the weight to be attached to the public interest in upholding the right to privacy which the provision is designed to protect. I have taken into account that information about Dr. Muldoon and the background to the dispute has been in the public domain. It seems to me that Dr. Muldoon's privacy has already been affected. I have also taken into account that the information relates to the settlement of a dispute with Dr. Muldoon's employer in relation to employment as a member of staff of the Board and to a dispute which relates to the public health services. The information is, in my view, different in nature from information about him which would concern his private life solely. In my view, these matters are of particular relevance in weighing the public interest that Dr. Muldoon's right to privacy should be upheld.

I have taken into account also the various matters mentioned above in the context of the public interest considerations under section 21(2) both in favour of granting and of refusing this request. Having considered all these matters, I find that, on balance, the public interest that the request be granted outweighs the public interest that the right to privacy of Dr. Muldoon should be upheld. Accordingly, I find that section 28(5)(a) does apply and section 28(1) does not apply.

                                                            ***

My overall finding is that none of the exemptions claimed by the Board is applicable and that your request for the records should, accordingly, be granted. In so finding, I draw attention to the provision at section 45(5)(a) of the FOI Act which provides that the grant of a request shall not be taken as constituting an authorisation or approval, "for the purposes of the law relating to defamation or breach of confidence, of the publication of the record concerned or any information contained therein by the requester concerned or any other person".

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, (as amended) I hereby annul the decision of the Board and direct that access should be granted to the records identified above as being within the scope of this review. In relation to Record No. 2, and for the avoidance of any doubt, this record is to be released subject to the deletion identified in the final paragraph of the Scope section of this decision.

A party to a review or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from that decision. Such an appeal must be initiated not later than eight weeks from the date of this letter.

Yours sincerely

Emily O'Reilly
Information Commissioner