Case 030759. Issues Request for identity of the maker of an FOI request to the Midland Health Board - whether commercially sensitive information - section 27(1)(b) - public interest - section 27(3)

Case Summary

Facts

On 14 March 2003, a request under the FOI Act was made to the Midland Health Board (the Board) for details, for 2001, in relation to the prescription of the drug class "statins" by GPs in the GMS scheme for the region. Following notification by the Board to the GPs concerned of its decision, one of these GPs (Dr X) requested "full information about the identity and details of the requester" that had submitted the request of 14 March 2003.

Decision

The Commissioner accepted that release of the identity of the maker of the request of 14 March 2003 (the first requester) "could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation" and that the information was exempt under section 27(1)(b) of the FOI Act. It was already clear from the decision of the Board that the first requester was a pharmaceutical company.

However, in her consideration of the public interest (as provided by section 27(3)) the Commissioner noted, inter alia, that providing as much information as possible to the public about the public health service, and about how the various interests within the service interact, must be regarded as being in the public interest. She said that it is in the public interest that information is freely available regarding the contacts between medical practitioners and pharmaceutical companies and whether, and if so how, such contacts influence prescribing patterns. She also commented that there is a very strong public interest served in ensuring the greatest level of transparency possible in regard to the operation of the health service including the manner in which the various sectors within the health service interact. She took the view that such transparency serves the public interest both in relation to the health service which is in the private sphere as well as to the publicly funded health service.

The Commissioner went on to say that not to identify the first requester meant that one or other pharmaceutical company will be wrongly associated with the FOI request and may suffer some damage on that account, which was not in the public interest. She said that, while not imputing any wrong motive to the first requester, transparency in this area makes it less likely that anything improper will occur; which was in the public interest. She also commented that she found it difficult to envisage that a commercial entity would expect to have a right of access under FOI to detailed information regarding the prescribing patterns of named medical practitioners while holding the view that the practitioners concerned, or the public generally, would be precluded from knowing the identity of the requester.

The Commissioner directed that the first requester's request (an e-mail) be released to Dr X, subject to the deletion of particular portions of that e-mail which were not covered by the scope of Dr X's request.

Date of Decision: 30.08.2004

Our Reference: 030759

30.08.2004

Dr X

Dear Dr X

I refer to your application to this Office under the Freedom of Information Act, 1997 (the FOI Act) for a review of the decision of the Midland Health Board (the Board) on your FOI request dated 30 April 2003. Please accept my apologies for the delay which has arisen in dealing with your application.

Background

I understand that on 22 April 2003, along with other GPs in the Midland Health Board region, you were notified of a decision that had been made under the FOI Act by the Board. You and the other GPs were notified of this FOI decision on the basis that the records to be released affected your interests and you would have a right of appeal in relation to the decision. The decision was on a request for details for 2001 in relation to the prescription of the drug class "statins" by GPs in the GMS scheme in the region. On 30 April 2003, and apparently in response to the notification from the Board, you made a request under the FOI Act for "full information about the identity and details of the requester." (I refer hereafter to the maker of the original FOI request, for the details concerning the prescribing of statins, as "the first requester").

On 26 May 2003, the Board told you that it was refusing you access to the information sought because the first requester had withdrawn the request and that "confidentiality should be preserved"; that "release of this information would have a negative effect on this business" and that the "[p]ublication of the details may jeopardise the business of the requester". I note that, in its decision, the Board did not refer to the particular provisions of the FOI Act under which it was refusing you access to the details sought.

You sought an internal review of that decision on 9 June 2003. On 27 June 2003 the Board issued its internal review decision in which it refused to release the information concerned on the grounds that sections 28 and 27 of the FOI Act applied to it. On 1 July 2003, you made your application to this Office. In accordance with our normal procedure under section 34(8) of the FOI Act, where the interests of a third party may be affected by a decision, my Office invited submissions from the first requester.

In conducting this review, I have had regard to:

• the case made by you in your original request, internal review application and in your application to this Office;
• the submission of the Board on the matter, and
• the written submissions to this Office made by the first requester as well as telephone contacts with senior members of staff of the first requester.

Finally, I have conducted this review 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 letter to particular sections of the FOI Act refer to the FOI Act, 1997 as amended.

Scope of Review

My review is confined solely to the issue of whether or not the Board's decision to refuse to release the information sought by you is in accordance with the terms of the FOI Act. Your request, as made, does not specify particular records to which you wish to be given access; rather you asked to be given certain details. The details sought are "full information about the identity and details of the requester." In effect, you are seeking to have the first requester identified. Your request, as made, does not seek access to the content of the FOI request of the first requester and I assume this is because the substance of that content has already been disclosed to you by the Board as part of its consultation process.

The right of access under FOI is a right of access to records. Where a requester asks questions or looks for particular details, I take the view that the request is to be treated as one for access to a record or records which answer the question or contain the details sought. In this case, the Board has also adopted this approach and forwarded a number of records to this Office which it appears to consider as being covered by the scope of your request. Having examined the records, it seems to me that the details sought by you on 30 April 2003 may be ascertained from the original request made by the first requester on 14 March 2003. Therefore, I am proceeding on the basis that this is the only record requiring to be considered for the purposes of this review.

It is clear from the communication you received from the Board that the first requester is a business or corporate entity as opposed to a natural person. In the course of this review, you agreed to narrow the scope of your request. You agreed that, in relation to any record being considered for possible release, you have no interest in being given personal details, relating to any particular employee of the first requester, which such a record might contain.

Findings

Preliminary

The Board relied on the exemptions contained at sections 27 and 28 of the FOI Act as the basis for its refusal of your request. In the course of this review, however, the Board informed my Office that it was no longer seeking to rely on section 27 as a basis for its decision "as the company in question is not advancing any supporting argument in this respect." In fact, in response to an invitation from my Office to make a submission on the case, the first requester has made detailed submissions directly to my Office and all of these submissions have been considered by me for the purposes of this review. The first requester contends that your request should be refused by reference to sections 27, 28 and 31 of the FOI Act.

Section 28, relied upon both by the Board and the first requester, provides an exemption for personal information. As you have already agreed to the deletion from the relevant record (the FOI request of the first requester) of any personal details it contains of any particular employee, it is unnecessary to consider the relevance of section 28 to this review.

Section 8(4) of the FOI Act provides: "Subject to the provisions of this Act, in deciding whether to grant or refuse to grant a request under section 7- ( a ) any reason that the requester gives for the request, and ( b ) any belief or opinion of the head as to what are the reasons of the requester for the request, shall be disregarded."

It is important to be clear, in the present context, that this provision relates to your motivation in making the FOI request which is now the subject of this present review. In the present context, this provision is not concerned with the motivation of the first requester in seeking details of the prescribing patterns of medical practitioners. However, for the purposes of considering public interest matters, section 8(4) does allow for regard to be had to your motivation in making your FOI 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.

Section 27

The first requester contends that the information concerned is such that its release could prejudice its competitive position in the conduct of its business and that section 27(1)(b) of the FOI Act applies. In essence, the first requester contends that to identify it as having made the particular FOI request, regarding prescription patterns for statins, would be prejudicial to its business operation.

The exemption under section 27(1)(b) of the FOI Act provides that:-

"..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 essence of the test in section 27(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The provision protects information whose disclosure:

• could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or
• could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation.

The word "could" in the provision allows for more generous latitude in refusing to grant access on the ground of perceived harm than the word "would". In relation to the second bullet point above, it should be noted that this part of section 27(1)(b) can apply even where such harm is not certain to materialise but might do so. However, and as the former Commissioner has noted in earlier decisions, in invoking the phrase "prejudice", the damage likely to occur as a result of disclosure of the information sought must be specified with a reasonable degree of clarity.

It is also important to note that section 27(1)(b) is subject to a public interest test at section 27(3) which provides:

"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..."

The first requester has made a number of arguments as to how it considers that its competitive position could be prejudiced by the release to you of the information concerned. As explained above, I must refrain in the course of this decision from disclosing information which it is contended is contained in an exempt record. For this reason, I consider that to reveal the precise details of the submission made by the first requester could lead to the revelation of the details that it is seeking to protect.

It is not for me to decide on whether or not the outcome predicted by the first requester is likely to happen or not; I must merely be satisfied that the outcome could occur. Having regard to the relatively low threshold that must be met in order for section 27(1)(b) to apply, I am satisfied that release of the information concerned "could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation" and that the information is exempt under section 27(1)(b) of the FOI Act.

Public Interest

Where a record has been found to be exempt on the basis of section 27(1) of the FOI Act, it is then necessary to consider whether that exemption should stand by reference to the public interest test at section 27(3) - cited above.

You comment that it is likely that the first request was made by "a drug company ... or by an agent acting for a drug company" and you have made a number of arguments regarding the public interest in the release to you of the information in question. The Board has not specified that the first requester is a pharmaceutical company. However, in its decision of 26 May 2003, the Board refers to the first requester as being engaged in a business and this, in any event, is to be inferred from the Board's reliance on section 27 of the Act. Given the nature of the information sought by the first requester, and the claim by the Board that the identification of the first requester might be commercially damaging, it is clear that the first requester is, in fact, a pharmaceutical company. In the particular circumstances of this case, I am satisfied that this confirmation does not prejudice the rights of appeal of the first requester.

In order to apply the public interest test, it is necessary to identify the public interest served by the granting of your request and, on the other side, the public interest served by the refusal of your request; it is then a matter of determining, on balance, which approach best serves the public interest.

Public Interest Arguments for ReleaseThe public interest arguments you have put forward in favour of release of the information may be characterised, in broad terms, as the public interest in transparency as to the interface between pharmaceutical companies and the medical profession and, in particular, between pharmaceutical companies and the publicly funded health service. In your submission, you comment on the conduct of pharmaceutical companies in their dealings with the medical profession. You suggest that there "is already an excessively close relationship between the drugs industry and the medical profession" and it is clear you regard this as not being in the public interest. You suggest that medical practitioners are constantly being targeted by pharmaceutical companies and are being pressurised to prescribe their particular products. In your submission to the Board you commented:

"There is already too much underhand practice taking place in the pharmaceutical industry. Drug trials are distorted, doctors are given misleading information in order to persuade them to prescribe products. Extremely valuable products essential for the nation's health are being discontinued at short notice because companies are not making enough money on them. No other industry makes such great profits as the drugs industry."

It is clear you view the FOI request of the first requester, in which it sought details of the prescribing patterns of GMS doctors in relation to statins, as one aspect of a wider pattern of unacceptable behaviour by pharmaceutical companies. It is your view that the identification of the first requester, notwithstanding that it withdrew its FOI request, will have a deterrent effect on the particular company (the first requester), and other such companies and that this can only be in the public interest.

You suggest that if it became known that pharmaceutical companies could seek the kind of information sought by the first requester, safe in the knowledge that their identities would remain confidential, there would be an avalanche of similar requests made to the Health Boards by pharmaceutical companies. You claim that, in such an event, Health Boards would effectively be acting "as an agent for the drugs companies in providing them with very valuable information, which would allow them to target GPs who are not using their products." You also suggest that release of the details sought by you, and the deterrent effect this would have on pharmaceutical companies from making similar such requests, would save a great deal of Health Board time in the future and that this must be in the public interest.

Though the point has not been made explicitly by you, there is also a public interest in knowing how the FOI Act operates and the uses to which it may be put by users, including business users.

Public Interest Arguments against Release In the course of this review the first requester made detailed submissions in relation to the public interest considerations arising in this case. I am constrained in the extent of the detail I can give in relation to some of these arguments as to give full details might lead to the identification of the first requester. However, I have given these submissions full consideration and, to the extent possible, I deal below with the principal arguments advanced in those submissions.

The first requester objects to it being identified as it believes this would be prejudicial to its position; it comments that its identification as the pharmaceutical company concerned "may prejudice some doctors' view of the Company and its products as, inter alia, they may see this [its FOI request] as an invasive investigation into their prescribing practices." While the first requester does not accept that doctors would be justified in taking this view, it says it recognises that some doctors may do so. The first requester argues that, should some doctors take such a view, this would inevitably cause them to view the company with "some suspicion" and cause them to prescribe the first requester's product less frequently thus making its product less available. The first requester argues that any reduction in the availability of its product would be contrary to the public interest for the following reasons:

• because of the merits of its product, any barrier to its availability would be damaging to the well-being of patients and of the public generally; it says: "It is in the public interest that [its product] ... has the widest possible availability and can be accessed by the widest range of patients ... and at a price which is the most cost effective."
• because of the merits of its product, its use will result in tangible financial savings to the health service, as well as having an "improved therapeutic affect" in the short, medium and long term; any barrier to its availability is contrary to the public interest.

The first requester also argues that it is in the public interest that a person "should not be unduly impeded in the pursuit of initiatives that are designed to improve economic efficiency." Its argument is that, in seeking to access statistical data regarding prescribing patterns, pharmaceutical companies are engaging in initiatives "designed to improve the distribution and availability of therapeutic treatments for patients". It argues that to identify it as the first requester, and accepting there would be negative consequences of such identification, would discourage pharmaceutical companies from engaging in such initiatives and that this is contrary to the public interest.

The first requester also refers to the public interest in promoting effective competition in the market place and it argues that any impediment to competition "limits consumer choice and market contestability". It points out that the "competition policy of Ireland is to enhance competition and any potential to affect that is detrimental to it". Its argument here appears to be that any damage to its position, consequent on its identification as the first requester, would amount to an impediment to competition and would be contrary to the public interest.

In addition to these arguments made by the first requester, I recognise that there is a public interest in encouraging and facilitating use by members of the public, and by corporate entities, of the FOI Act.

Assessment of Public Interest BalanceIt would not be appropriate for me to express a view as to the validity of the comments you have made regarding what you see as unacceptable practices, on the part of pharmaceutical companies, in their interface with the medical profession and with the public health service. I accept the validity of your point that the FOI request of the first requester must be seen as one aspect of the wider relationship between pharmaceutical companies and medical practitioners. I recognise that there is a keen debate regarding the marketing strategies of pharmaceutical companies and whether such strategies are always ethical and acceptable. That there should be such debate is undoubtedly in the public interest.

The performance of our health service, and particularly of the public health service, is of fundamental importance. In principle, providing as much information as possible to the public about that service, and about how the various interests within the service interact, must be regarded as being in the public interest. Specifically, it is in the public interest that information is freely available regarding the contacts between medical practitioners and pharmaceutical companies and whether, and if so how, such contacts influence prescribing patterns. It is important to bear in mind, in the case of medical card holders (GMS patients), that the full cost of prescribed medicines is met by the Exchequer; in the case of other patients, the cost of prescribed drugs is subsidised by the Exchequer through the drugs refund scheme. Either way, the prescribing patterns of medical practitioners have direct consequences for the Exchequer and there is a clear public interest served in the public having as much information as possible about the relationship of pharmaceutical companies with medical practitioners. This remains the case whether or not one agrees with your position that that relationship is somehow inappropriate.

In my view, there is a very strong public interest served in ensuring the greatest level of transparency possible in regard to the operation of the health service including the manner in which the various sectors within the health service interact. I take the view that such transparency serves the public interest both in relation to the health service which is in the private sphere as well as to the publicly funded health service. In the former case, transparency supports the public interest in ensuring that the private health sector operates in a manner which is competitive, professional and efficient. In the latter case, transparency supports the public interest in ensuring that the public health sector operates in a manner which is professional, fair and gives value for money. In relation to public sector activity, the notions of transparency and accountability are always closely linked. In the present context, medical practitioners must expect to be accountable for the manner in which they interact with pharmaceutical companies. I accept that, in this instance, the interaction is one initiated by the first requester rather than by the practitioners. However, as mentioned above, I believe it is correct to see this particular interaction as one aspect of the wider relationship between pharmaceutical companies and medical practitioners.

The question arises as to whether identification of the particular pharmaceutical company, as the maker of the original FOI request, serves the public interest. It might be argued that it is enough that you should know that the request was made by a pharmaceutical company and that identification is not necessary. Both the first requester and yourself agree that identification of the first requester is likely to have some negative implications for that company. You have speculated - as no doubt have other medical practitioners - as to the identity of the company and you believe it is likely to be one of a small number of companies which you have named. For as long as the first requester remains unnamed, it may be that one or other pharmaceutical company will be wrongly associated with the FOI request and may suffer some damage on that account. That this should happen is hardly in the public interest. More fundamentally, however, the requirements of transparency are such that it is important that the particular company should be identified. This is not to impute any wrong motive to the first requester. It is simply a recognition that transparency in this area makes it less likely that anything improper will occur; and this is undoubtedly very much in the public interest.

The first requester argues that, because of the particular merits of its product, any impediment to its availability will have negative consequences for the health of the public and will have financial consequences for the public health service. I have to assume that medical practitioners will behave responsibly and professionally and that they will act always with the well-being of their patients at heart. While some practitioners may be irritated by the practices of some pharmaceutical companies, I find it difficult to accept that they would decline to prescribe the first requester's product if, objectively, it appears to be the best option available. As for the claim that the first requester's product has advantages over that of other companies, this is not a matter on which I can adjudicate.

The first requester also argues that there is a public interest in initiatives "designed to improve the distribution and availability of therapeutic treatments for patients". I accept that this is the case. But this is matched by a public interest in knowing how companies access and make use of statistical data generated within the public sector. Finally, the first requester argues that its identification will result in damage to its business position and that this would be damaging to the proper operation of the State's competition policy. I find it difficult to accept that the mere identification of the first requester as having sought particular data under FOI could have any implications for competition policy. Indeed, one might argue that openness as to how all operators in a particular market are operating serves the interests of competition policy.

I find it difficult to envisage that a commercial entity would expect to have a right of access under FOI to detailed information regarding the prescribing patterns of named medical practitioners while holding the view that the practitioners concerned, or the public generally, would be precluded from knowing the identity of the requester. It is the case that the FOI Act is about maximising access to information held by public bodies. Included in the information held by public bodies are details of use of the FOI Act. Such details are potentially releasable under FOI except they are protected by a specific exemption within that Act. The exemptions which might be claimed in such a situation are section 28 (which protects the right to privacy in the case of personal information) and section 27 (which protects commercially sensitive information). Both of these exemptions are subject to a public interest test. Accordingly, there can be no expectation of an automatic protection of the details of one's FOI request to a public body.

Having considered the matter carefully, I am satisfied that the balance of the public interest favours the granting of your request and the resultant identification of the first requester. In reaching this conclusion, I am conscious in particular of the importance of transparency and accountability in relation to every aspect of the functioning of the public health service. Accordingly, in applying section 27(3) in this case I find that, on balance, the public interest is better served by granting than by refusing to grant your request and that the record in question is not exempt by virtue of section 27 of the FOI Act.

Section 31

The first requester contends that section 31(1)(a) and 31(1)(c) of the FOI Act are applicable and that your request should be refused accordingly.

Section 31(1)(a) of the FOI Act provides that a request may be refused where the public body considers that access to the record concerned "could reasonably be expected to have a serious adverse affect on the financial interests of the State or on the ability of the Government to manage the national economy". Section 31(1)(c) of the FOI Act provides that a request may be refused where the public body considers that access to the record concerned "could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons."

The first requester contends that disclosing the information sought by you will stifle competition, be injurious to the financial interest of the company, the financial interests of the public health service and to the health of patients and individuals. It also argues that interference with competition would confer a benefit on its competitors. The first requester also refers to sections 31(2)(h), (j), (k), (l), (n), and (o) of the FOI Act which, it claims, have "some relevance to the information" concerned.

The examples cited in section 31(1)(2) are specific examples of the type of record that may be exempted under section 31(1). However, the real test is whether the harms envisaged in sub-section (1), or any one of them, can reasonably be expected to result consequent on disclosure of a record. Again, I am constrained in the extent to which I can set out the details of the first requester's contentions. Essentially, it contends that disclosure of its identity might lead to medical practitioners being prejudiced against a particular product of the company's and that the general public, public health bodies and ultimately the Exchequer, will be disadvantaged should practitioners opt to prescribe more costly alternatives to the product of the first requester.

However, as already stated, it seems to me that medical practitioners are duty bound to prescribe the most appropriate available product to their patients, regardless of the disregard in which they may hold the company producing that product. In order for section 31(1)(a) to apply, it seems to me that there must be a strong likelihood of the national economy, or the financial interests of the State, suffering "serious adverse affect" through release of the information at issue. On the basis of the arguments put to me by the first requester, I am not satisfied that this is a likely scenario in this case. Accordingly, I am not satisfied that section 31(1)(a) applies to the record concerned.

Given the arguments put forward by the company in respect of its contention that section 27(1)(b) of the FOI Act applies, it could be argued that section 31(1)(c) also applies to the record. The test to be met at section 31(1)(c) is somewhat higher than that of section 27(1)(b) in that it requires it to be shown that access to a record "could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons". It could be inferred that if the competitive position of the first requester is prejudiced by the release of the record at issue, then the competitive position of its competitors could benefit as a result. However, any such benefit to a competitor, or loss to a person, must be "unwarranted". It is also the case that the decision maker must be satisfied not only that such an outcome is possible but also that such an outcome "could reasonably be expected".

The context of the section 31 exemption suggests that it is intended to protect the financial and economic interests of the State and of public bodies. To the extent that it may also protect the interests of persons generally, as suggested by section 31(1)(c), this would seem to be the case only to the extent that harm to a person (other than the State or a public body) would also result in harm to the State or a public body. It is important to remember that the commercial interests of persons generally are already protected by section 27. Accordingly, the key issue in considering the application of section 31(1)(c) is the extent to which, if at all, the grant of your request would damage the interests of the State or some public body. Such damage would also have to meet the test of being "unwarranted". On the basis of the contentions of the first requester, I am not satisfied that section 31(1)(c) applies in this case and I find accordingly.

However, even if I were to find that section 31(1)(c) applies in this case, I would still be bound to consider section 31(3), which requires that the public interest in the release of the record be weighed against the public interest that the record be withheld. This public interest test is the same as that provided for at section 27(3) of the FOI Act. For the reasons already outlined in respect of section 27(3) of the FOI Act, I consider that the public interest in release of the record by far outweighs the public interest that the record be withheld.

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 Midland Health Board in this case and direct that the record of the FOI request made by the first requester be released to you, subject to the withholding by the Board (a) of all details concerning the person who made the request on behalf of the first requester and (b) the deletion of the points numbered 1. - 4. in the record.

I am sending a copy of this letter to the first requester and to the Board. For the avoidance of doubt, I will send the Board a copy of the record to be released with a clear indication of those portions which are to be deleted prior to the release by the Board of the redacted record.

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 the 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