Access to a report of an enquiry team arising from a complaint concerning prescribing and dispensing practices - whether the record relates to deliberative process - section 20(1) - whether access to the record could prejudice investigations or have an adverse effect on performance of public body's functions - section 21(1)(a) and (b) - whether the record contains commercially sensitive information - section 27(1)(b) - public interest test - section 27(3).

Case Summary

Facts

Mr AA made a request to the Health Service Executive ("HSE") for access to a copy of the report ("the report") of an enquiry team established by the former North-Western Health Board in 2002 arising from a complaint which Mr AA had made. The complaint concerned "certain prescribing and dispensing practices in the [Townland 1, Townland 2 and Townland 3] area" and involved a general medical practitioner (with a contract under the General Medical Services scheme) and a pharmacist (with a contract under the community pharmacy scheme). The medical practitioner's contract, at the time, was with the former North-Western Health Board and the pharmacist's contract was with the former North-Eastern Health Board. The HSE refused the request on the grounds that the report was exempt from release under section 21(1)(a) & (b) of the FOI Act. The HSE failed to give a decision on Mr AA's internal review application.

In the course of the Commissioner's review, the complained of third parties argued that the report should be exempt under section 20(1) on the basis that the report was incomplete and that a deliberative process was still underway.

Decision

The FOI Act exemptions claimed as being applicable were those contained at sections 20(1), 21(1)(a) & (b). In addition the Commissioner accepted that section 27(1) is potentially relevant.

The solicitors for the third parties seemed to suggest that the report is not complete and that a deliberative process was still underway and thus the report is exempt from release under section 20(1) of the FOI Act. The Commissioner did not accept this reasoning. The investigation committee presented its report to the then North-Western Health Board in 2003. There was no suggestion from the HSE that the report has yet to be completed or that any related deliberations were on-going. In any event, even if the exemption did apply, it would be subject to the public interest test at section 20(3).

The exemptions at sections 21(1) and 27(1) have in common that, where they are found to apply, each is capable of being set aside where the public interest so warrants. The public interest test to be applied is the same in each case. If any one of these exemptions is found to apply, then the report will not be releasable unless the public interest is found to support release. Given the content of the report, the Commissioner accepted that its release could reasonably be expected to prejudice the competitive position of one or other, or both, of the third parties in the conduct of their professions. On this basis, the exemption at section 27(1)(b) applied to the report. Given this finding, and the fact that an identical public interest test applies were the exemptions at sections 20(1), 21(1)(a) or (b)to apply, it was not necessary to consider these latter exemptions specifically.

Section 27(3) of the FOI Act provides that the exemptions contained in section 27(1) do not apply 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 public interest arguments of the HSE were based principally on a view that the release of the report would undermine its capacity to conduct such investigations again in the future. The Commissioner was not convinced that the release of this report would have seriously detrimental consequences for future investigations. The third parties' public interest arguments focused on alleged unfair procedures in the conduct of the investigation. If this were a case in which it was immediately clear that the investigation was based on unfair procedures, then the Commissioner could accept that there would be a strong public interest argument in protecting the positions of individuals who, on the face of it, did not get fair treatment. However, the information available did not lead to such a conclusion. In the circumstances, the Commissioner was not satisfied that the public interest arguments of the third parties in favour of withholding the report were particularly strong.

The Commissioner was satisfied that release of the report serves the public interest in very many respects, including:

• knowing how the statutory health service deals with serious complaints;
• ensuring public accountability for the actions of the HSE (including its predecessor health boards), its staff and its contractors;
• ensuring that the welfare of patients and clients is to the forefront of HSE actions;
• ensuring accountability in the spending of public money;
• promoting public knowledge of the systems used by the public health service and of the mechanisms for resolving difficulties.

On balance, the Commissioner found that the public interest is better served by the release of the report than by its being withheld. Accordingly, section 27(3) applied to displace the application of the exemption at section 27(1)(b) of the FOI Act. Similarly, were it the case that the other claimed exemptions [at section 21(1)(a) & (b)] were found to apply, these exemptions would also be displaced by the application of the public interest test to which those exemptions are subject.

The Commissioner annulled the decision of the HSE and directed the HSE to release the report in question, inclusive of appendices, but with the names and any identifying details of medical card holders and patients deleted.

Date of Decision: 07.01.2008

DECISION UNDER THE FREEDOM OF INFORMATION ACTS 1997 AND 2003 IN RELATION TO CASE NUMBER 060320 - MR. AA AND THE HEALTH SERVICE EXECUTIVE

Background:

On 14 March 2006, Mr AA made a request under the Freedom of Information ("FOI") Acts, 1997 and 2003, to the Health Service Executive ("HSE") for access to a copy of the report ("the report") of an enquiry team established by the former North-Western Health Board in 2002 arising from a complaint which Mr AA had made. The complaint concerned "certain prescribing and dispensing practices in the [Townland 1, Townland 2 and Townland 3] area" and involved a general medical practitioner (with a contract under the General Medical Services scheme) and a pharmacist (with a contract under the community pharmacy scheme). The medical practitioner's contract, at the time, was with the former North-Western Health Board and the pharmacist's contract was with the former North-Eastern Health Board; both of these entities are now subsumed into the Health Service Executive.

In its decision of 18 May 2006, the HSE refused the request on the grounds that the report was exempt from release under section 21(1)(a) & (b) of the FOI Act. The HSE failed to give a decision on Mr AA's internal review application of 14 June 2006 and he then applied to this Office, on 5 October 2006, for a review of the HSE's decision. In the course of this review, the HSE issued a late internal review decision which was to affirm the initial refusal of the request. It may also be relevant to note that in July 2006 the HSE sent Mr AA a cheque for €54,000 which it described as an "ex-gratia" payment" in full and final settlement of [his] complaint". I understand that Mr AA has not cashed this cheque.

The record at issue in this review is the report of an enquiry team, established by the former North-Western Health Board in 2002, to look into complaints made by Mr AA. The enquiry team completed its work in September 2003. I note that the copy of the report provided to this Office by the HSE is dated June 2003 and is described as a Draft Report. However, I take it that this is the completed report and that no later version exists. Mr AA's complaints involved two third parties, contractors to the HSE, and the report necessarily discloses information about these third parties. These third parties were notified by my Office of this review and were invited to make submissions. In conducting this review under section 34 of the FOI Act, I have had regard to the submissions of the HSE, of Mr AA and of the third parties. These submissions are summarised below.

The issue in this review is whether the HSE is justified, by reference to one or more of the exemptions in the FOI Act, in its decision to refuse to grant Mr AA's request for access to a copy of the report.

Preliminary Matters

While I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. I also have to refrain from disclosing information which an interested party contends is contained in an exempt record so as to preserve that party's right of further appeal to the High Court. These provisions have the effect of placing some constraints on what I can say in this decision regarding the content of the report as well as having a bearing on the extent to which I can set out the full details of certain of the submissions received in the course of this review.

At this point, also, I think it appropriate to draw attention to the provisions of section 45 of the FOI Act. While no civil or criminal action may lie against the HSE or against this Office arising from the release of records in this case, the FOI Act confers no such privilege or immunity in the event of further publication of such records by the requester or any other party.

Submissions

In the course of this review, I have received detailed submissions from all of the interested parties. In the case of the HSE and the third parties, these submissions took account of the preliminary views expressed by the investigating officer in my Office. While only the key points in these submissions are summarised below, I have considered all of the arguments raised in these submissions by the different parties.

Health Service Executive

The position of the HSE is set out in its initial decision of 18 May 2006, in its late internal review decision of 21 December 2006 and in direct submissions made to my Office. The HSE's position is that the report is exempt from release by virtue of section 21(1)(a) & (b) and that the public interest test, which must be applied when section 21 is invoked, favours the refusal of the request. Section 21(1) 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 the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof,

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

The HSE contends that release of the report would "adversely affect the ability of the HSE to carry out similar investigations in the future" as "the quality and quantum of co-operation offered by interviewees in an investigation may be said to be in some way proportional to the degree of confidentiality afforded them ...". In so far as such investigations might involve the HSE's own staff, it argues that "there would be such a lowering of staff morale consequential upon the publication of this report so as to utterly damage and undermine their co-operation in any future investigation". As regards the offered "ex-gratia" payment of €54,000 to Mr AA by the HSE, it contends that this is not a factor which should have any bearing on the outcome of the review; specifically, the HSE asserts that this offered payment should not be considered as relevant in applying the public interest test. The HSE contends that it is "utterly unconnected with the actual content of the investigation that any decision was made with regard to a compromise on an ex-gratia basis with Mr AA". The HSE also notes that it has had correspondence from third parties apparently challenging the "competency and validity of the report"; and while it does not accept such criticism of the particular report, the HSE notes that the "law is uncertain with regard to the legal implications of the release of a report which might very well have fundamental flaws in its validity or competencies".

On the question of immunity from legal proceedings consequent on release of records under the FOI Act, the HSE acknowledges that section 45 of the FOI Act appears to protect its position. However, it raises a question as to the constitutionality of section 45 in circumstances where a record released under FOI actually gives rise to defamation; it also queries whether section 45, in such circumstances, is compatible with the European Convention on Human Rights.

In relation to the public interest test, the HSE argues that the public interest is best served in this case by the withholding of the report; this is based on a view that the grant of the request would have such negative implications for the conduct of future enquiries that the public interest is best served by facilitating such enquiries in the future. Finally, the HSE argues that the report is also protected by section 26(1)(a) which covers information obtained in confidence.

Third Parties

It is convenient to present the submissions of the third parties together as submissions were made on their behalf by the same solicitors. One of the issues raised by the third parties was that they were hindered in their ability to make submissions by virtue of the fact that they had not been given a copy of the full report. I understand that, prior to the review, they had been made aware of the report's content and findings and that, in any event, the HSE provided them with copies of the report in the course of this review.

The initial response of one of the third parties, made personally, was to comment that the "entire business is a minor dispute between two pharmacists ... and is therefore of no interest or concern to the general public". Subsequent submissions were made by solicitors for the third parties and contained the following arguments:

• that there was an agreement with the enquiry team "that the report would not emerge";
• that the enquiry team's interview with one of the third parties "was conducted in a disproportionately oppressive and aggressive manner";
• that the enquiry team "demonstrated a bias" against one of the third parties;
• that the enquiry was in breach of several provisions of the community pharmacy contract;
• that the making of negative findings in the report was done in breach of fair procedures and natural and constitutional justice;
• that the conduct of the investigation breached the third parties' rights under Article 6 of the European Convention on Human Rights;
• that the delay in clarifying that the report had been finalised meant that the third parties were deprived of the opportunity to seek judicial review within the usual time limits and that the option to seek judicial review outside of these time limits is fraught with difficulties;
• in so far as the public interest is concerned, this would be best served by "by the publication of a redacted or 'heavily warned' version of the report".

In addition, the third parties' submissions include an argument that section 20(1) of the FOI Act may form a basis for the refusal of access to the report. Section 20(1) provides:

"A head may refuse to grant a request under section 7 if the record concerned contains matter relating to the deliberative processes of a public body ..".

Mr AA

Mr AA's submissions focus particularly on the public interest aspect of the case; he contends that even if section 21(1) applies, it should be set aside in the public interest. He argues that the subject matter of the report is of substantial public interest in that the terms of reference required the investigators to establish whether:

• there were any breaches of legislation, including contractual code, which the then Health Board was responsible for enforcing;
• patient care was compromised arising from "current arrangements for the provision of medicines to patients in [Townland 2/Townland 3]";
• the current arrangements in [Townland 2] and [Named Facility] facilitated patients' right to choose where they have their medicines dispensed.

Mr AA comments that the report is "the result of serious complaints involving medical ethics, fair trading, illegal dispensing, manipulation, collusion, intimidation, fear, breach of contract, HSE staff knowingly making decisions contrary to HSE contracts." These, he contends, are matters which require to be brought into the public arena.

As regards the HSE's having sent him a cheque for €54,000 in settlement of his complaint, Mr AA comments that "any investigation which results in an offer of compensation of €54,000 [of public money] should be in the public arena". On the matter of whether the investigation was conducted fairly, Mr AA comments that it is reasonable to assume that "a long established statutory body affiliated to the Department of Health would have the required protocols in place to ensure that the investigation was carried out in a manner which complied with fairness and natural justice and therefore release of the report could not compromise fairness and natural justice". In so far as the report may contain the names, or identifying details of private third parties, Mr AA is happy to have such details deleted.

Findings

The FOI Act exemptions claimed as being applicable are those contained at sections 20(1), 21(1)(a) & (b), 26(1)(a). In addition, while there has not been a specific claim to this effect, I accept that section 27(1) is potentially relevant. Neither the HSE nor the third parties have sought to reply on section 28(1), which protects personal information, but it is clear that where the report refers to named patients or medical card holders then such references disclose the personal information of those named. Mr AA accepts that these identifying details should be deleted from any copy of the report to be released to him. It is not necessary, therefore, to consider section 28 in what follows.

Section 20(1)

The solicitors for the third parties seem to suggest that the report is not complete and thus a deliberative process is still underway. I do not accept this reasoning. The investigation committee completed its work and presented its report to the then North-Western Health Board in 2003. There is no suggestion from the HSE that the report has yet to be completed or that any related deliberations are on-going. Furthermore, the HSE itself has not claimed an exemption under section 20. In these circumstances, and mindful of the provisions of section 34(12)(b) of the FOI Act, I find that this exemption does not apply in this case. In any event, even if the exemption did apply, it would be subject to the public interest test at section 20(3). As will be clear from what follows, this case falls to be decided in any event on the basis of the public interest test.

Sections 21(1), 26(1)(a) & 27(1)

These three exemptions have in common that, where they are found to apply, each is capable of being set aside where the public interest so warrants. The public interest test to be applied is the same in each case. If any one of these exemptions is found to apply, then the report will not be releasable unless the public interest is found to support release.

While the HSE has not claimed that the report is commercially sensitive, the third parties have claimed that its release would be damaging to them. Section 27(1)(b) of the FOI Act provides as follows:

"... 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".

Given the content of the report, I accept that its release could reasonably be expected to prejudice the competitive position of one or other, or both, of the third parties in the conduct of their professions. On this basis, I find that the exemption at section 27(1)(b) applies to the report. Given this finding, and the fact that an identical public interest test applies were the exemptions at sections 20(1), 21(1)(a) or (b) or section 26(1)(a) to apply, it is not necessary to consider these latter exemptions specifically.

Public Interest Test

Section 27(3) of the FOI Act provides that the exemptions contained in section 27(1) do not apply 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 .....". Sections 20(1), 21(1)(a) & (b) and section 26(1)(a) are subject to public interest tests which are worded identically with that at section 27(3).

The public interest arguments of the HSE are based principally on a view that the release of the report will undermine its capacity to conduct such investigations again in the future. The reason for this, it is argued, is that those who co-operated in the conduct of the investigation will be less likely to co-operate with future investigations; in addition, the knowledge that the report of this investigation was released (should this happen) would discourage people generally from co-operating with such future investigations. It is important to remember that the main parties involved in this investigation were either staff members of, or contractors to, the then Health Board (and now the Health Service Executive). Any failure to co-operate in a future HSE investigation on the part of such persons would carry its own consequences. While the investigators did meet with some ordinary members of the public in the course of their work, these people are not identified in the report. In any event, Mr AA has excluded from his request anything which identifies such ordinary members of the public (patients or medical card holders).

The HSE refers to a decision of my predecessor in Case No. 99273 - Mr. X and the North Western Health Board (full details may be seen at www.oic.ie) - which affirmed the decision of the former North Western Health Board in the case of a particular investigation carried out by that Board. However, in that decision the previous Commissioner also commented as follows:

"There is a clear public interest in a health board being able to investigate effectively complaints and allegations against its staff and contractors.........no one can expect an unqualified assurance of confidentiality in investigations of this kind in relation to disclosures of wrongdoing. Assurances are not warranted when the effect of granting them would be to conceal wrongdoing by an individual or a public body...."

While it is in the public interest that the HSE should be facilitated in conducting, or commissioning, such investigations in the future, I am not convinced that the release of this report will have seriously detrimental consequences for future investigations.

For their part, the third parties' public interest arguments focus on alleged unfair procedures in the conduct of the investigation. In essence, it appears to be their argument that it cannot be in the public interest to release a report under FOI (which, in effect, is release to the world at large) where that report is based on procedures which were unfair and where the conclusions are not warranted. Clearly, it is not for me to undertake a detailed analysis of the fairness of the investigation process. If this were a case in which it was immediately clear that the investigation was based on unfair procedures, then I accept that there would be a strong public interest argument in protecting the positions of individuals who, on the face of it, did not get fair treatment. In my recent decision in Case No. 060030 - Ms. Y and the Health Service Executive, I took the view that a particular process did not, self-evidently, meet the requirements of fair procedure and that this, accordingly, was a factor to be weighed in the balance in considering the public interest. However, the information available to me in this present case does not lead to such a conclusion.

From my examination of the report, it is very clear that the persons complained of were aware of the nature of the complaints against them and were given adequate opportunity to rebut those complaints in the course of the investigation team's work. Both of the third parties attended meetings with the investigators; both had professional/legal representatives accompanying them to their respective meetings with the investigators; and both signed minutes of their meetings with the investigators.

In the circumstances, I am not satisfied that the public interest arguments of the third parties in favour of withholding the report are particularly strong.

However, I am satisfied that the public interest arguments in favour of the release of the report are quite strong. While I cannot disclose the contents of the report, it is clear from Mr AA's submission (above) that it deals with issues of very significant public interest. I do not propose to deal with these matters in any detail. However, I am satisfied that release of the report serves the public interest in very many respects, including:

• knowing how the statutory health service deals with serious complaints;
• ensuring public accountability for the actions of the HSE (including its predecessor health boards), its staff and its contractors;
• ensuring that the welfare of patients and clients is to the forefront of HSE actions;
• ensuring accountability in the spending of public money;
• promoting public knowledge of the systems used by the public health service and of the mechanisms for resolving difficulties.

Fundamentally, I take the view that it is in the public interest, and particularly important in terms of transparency and accountability, that all of the actions and practices of the publicly funded health service should be in the public domain except where there is a compelling public interest reason to withhold them from the public domain. In the circumstances of this case, therefore, I find on balance that that the public interest is better served by the release of the report than by its being withheld. Accordingly, I find that section 27(3) applies to displace the application of the exemption at section 27(1)(b) of the FOI Act. Similarly, were it the case that the other claimed exemptions [at section 21(1)(a) & (b) and section 26(1)(a)] were found to apply, these exemptions would also be displaced by the application of the public interest test to which those exemptions are subject.

In summary, I am satisfied that the report is not exempt from release under the FOI Act and I find, therefore, that it should be released (subject to the deletion of the names or other identifying details of private third parties, that is, of patients and medical card holders)

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 HSE and I direct the HSE to release the report in question, inclusive of appendices, but with the names and any identifying details of medical card holders and patients deleted.

Appeal Rights

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 decision.

Emily O'Reilly

Information Commissioner

07 January 2008