Case Case 080144. The Senior Investigator found that the HSE is not justified in its refusal of access to the record. She annulled the decision of the HSE and directed it to release the record in question.

Case Summary

Issue

Whether the HSE is justified in its decision to refuse access to a record comprising a report of an investigation on the basis that the record is exempt from release under the provisions of sections 20(1) and 21(1) the FOI Act.

Decision

The Senior Investigator found that the HSE is not justified in its refusal of access to the record. She annulled the decision of the HSE and directed it to release the record in question.

Date of Decision: 21.10.2008

Case 080144 - Mr. Y and the Health Service Executive (the HSE)

Background:

The FOI request was included in a letter, dated 5 January 2008, sent to the HSE. In this letter, the applicant sought a copy of a report prepared for the HSE on complaints that the applicant had made about St Mary's Hospital ("the Hospital"). In its decision letter of 7 April 2008, the HSE refused access to the record in question claiming that it was exempt from release under section 20(1) of the FOI Act. On 22 April 2008, the applicant sought an internal review of the HSE's initial decision. In its internal review decision dated 4 June 2008, the HSE affirmed the initial decision. The applicant applied to this Office on 17 June 2008 for a review of the HSE's decision.

Scope of Review

This review is concerned solely with the question of whether the HSE is justified, in terms of the provisions of the FOI Act, in its decision to refuse access to the one record at issue.

Submissions

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Findings

Analysis and Findings

Preliminary Matters

Section 34(12)(b) of the FOI Act provides that, where a decision to refuse a request is being reviewed by the Information Commissioner, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Thus, in this case, the onus is on the HSE to satisfy me that its decision is justified.

In conducting this review, I have had regard to the submissions of the HSE as well as those of the applicant (including those he made to the HSE); the provisions of the FOI Acts, the contents of the record in question (which has been provided to this Office by the HSE), and the "preliminary views" letter, dated 14 August 2008, sent to the HSE by Mr. Desmond O'Neill, Investigator, of this Office. I have also had regard to the HSE's most recent submission, dated 15 September 2008, in which it claims that, in addition to the section 20 exemption relied upon in its decision, the record is exempt from release under sections 21(1)(a) and (b) of the FOI Act.

Section 20(1)

The HSE suggests that the report in question was "not accepted" or published by the HSE and that it is has since undertaken a second inquiry into the allegations of mistreatment of patients along with an evaluation of standards of care, including health and safety issues, in the Hospital. It appears that the HSE has concerns about the report and the procedures adopted in the investigation. The HSE says that:

1. an Evaluation of Standards of Patient Care has since been conducted by an independent professional company with experience in this field. This evaluation was completed in April 2008 and a report has been forwarded to the National Management Team for consideration, and,
2. a new investigation of the complaints which the applicant submitted is being undertaken by an independent committee and it is the HSE's intention (as of September 2008) that this committee will finalise its work by December 2008.

It states that the deliberative process is not complete and that the record contains matter relating to the current deliberative processes.

Section 20 of the FOI Act, 1997, as amended, provides:

"(1) 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 (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes)."

However, any decision to exempt a record on the basis of section 20(1) must be considered in the context of sections 20(2) and 20(3) which provide, inter alia,

"(2) Subsection (1) does not apply to a record if and in so far as it contains - ...

(b) factual information,...

(d) a report of an investigation or analysis of the performance, efficiency or effectiveness of a public body in relation to the functions generally or a particular function of the body...

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

It could be argued that parts of the report are not exempt under section 20 because they comprise factual information. However, the situation under section 20(2)(d) is even more clearcut. Section 20 is specifically dis-applied here because the record is a report of an investigation of the performance of the HSE in relation to its functions in regard to complaints pertaining to patient care and health and safety issues in one of its hospitals. The question of whether the HSE was satisfied with the report which it commissioned is not something which I can take into account because section 20(2)(d) does not extend to an evaluation of the quality of any report. Thus, there is no need for me to further consider the application of section 20 or to apply the public interest test because the exemption simply cannot apply to this record by virtue of section 20(2)(d) of the FOI Act.

Section 21(1)

The HSE further seeks to rely on section 21(1)(a) and (b) of the FOI Act as a basis for its refusal of the records. 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),.".

In the case of The Sunday Times Newspaper & Others and the Department of Education and Science the previous Information Commissioner, Mr. Kevin Murphy, explained the approach which he adopted to applying this exemption; the current Commissioner has adopted this approach also. In summary, the exemption is concerned with whether or not the decision maker's expectation is reasonable. 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.

The HSE says that release of the record could prejudice the outcome of its "second" evaluation and investigation. It says that it would be unfair to expect parties to the current investigation to contribute fully to a process "that has been potentially compromised by the release of this record". The release of the report would, according to the HSE, indicate to staff and others that confidentiality cannot be assured in these investigations and that to "dispense with the atmosphere of confidentiality" could deter persons from co-operating in a frank and open manner.

Section 21(1)(a)

It is appropriate here to refer to the Supreme Court judgment in Sheedy v Information Commissioner [2005] IESC 35 in which Mr. Justice Kearns stated, in relation to section 21(1) that "the onus to produce evidence of prejudice fell on the Department and in the absence of same the Commissioner was entitled, under s. 34 of the Act of 1997, to hold against the Department. A mere assertion of an expectation [of prejudice] ... could never constitute sufficient evidence in this regard...". In the present context, it is clear that the HSE must show some evidence of prejudice if its reliance on section 21(1)(a) is to be justified.

This Office has not been furnished with any information to the effect that guarantees of confidentiality or any assurances of confidence were given to those involved in the investigation which resulted in the report dated August 2007, the subject of this review. Indeed, apart from the applicant himself, no staff or patients or other persons are identified, named or otherwise mentioned in the report. In any case, I am not convinced that it is feasible for the HSE to give absolute guarantees of confidentiality to its staff in regard to records created in the course of an investigation. I say this having regard to the application, since 1998, of the FOI Act to records held by the HSE and to the rights of participants in investigations to natural justice and fair procedures.

I accept that the co-operation of employees is desirable for any future or ongoing investigations . However, I am not convinced that such co-operation would necessarily be curtailed if this record is disclosed under FOI. Presumably, any persons against whom allegations or complaints were made would remain anxious to put their account of what happened on record as would the complainant. I note also that the policy document "Trust In Care" for Health Service Employers on Upholding the Dignity and Welfare of Patient/Clients and the Procedure for Managing Allegations of Abuse against Staff Members (May 2005) requires any staff member who suspects that a patient or client is being abused or is at risk of abuse has a duty of care to report the matter to his /her manager. The policy further states that such staff should be "protected from the risk of reprisals or intimidation" In addition, there is a general onus on public servants, including those in the health service, to co-operate in regard to matters relating to their employment. Furthermore, I do not consider that co-operation is always a pre-requisite to the effective investigation of an allegation. Managers are entitled to take appropriate action where information sought is not supplied by staff reporting to them.

I am not satisfied that in this case the HSE has pointed to specific prejudice to the investigation or investigations generally or the methods by which they are conducted such that the ability of the investigations to achieve this objective would be affected. In particular, I do not think that it is reasonable to expect that the harms identified would flow from release of the particular content of the report at issue. The report in this case does not deal with the particular actions or motivations of individual staff or with evidence of how individual patients were, allegedly, treated. It is fair to say that it is general in nature. In this regard, section 43 of the FOI Act requires 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 the description of the content that I can give is very limited.

Having regard to the requirements of section 34(12) and the content of the report, I find that the HSE is not entitled to refuse access to the record concerned under section 21(1)(a) of the FOI Act.

Section 21(1)(b)

The standard to be met in applying the test of section 21(1)(b) is relatively high. An expectation of "significant, adverse effect" requires evidence to support the likelihood of serious harm occurring were the records to be released. When invoking section 21(1)(b), the public body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Not only must the harm be reasonably expected but it must also be expected that the harm will be significant in its extent.

It is clear from the submissions of the HSE that the function in relation to management that it has in mind is primarily the management of its staff and its ability to investigate complaints. Arguments similar to those advanced in connection with section 21(1)(a) have been made. The HSE refers to personnel and industrial relations functions and appears to be taking the view that release in this instance would inevitably mean release in other instances, irrespective of the content of the investigation report, the sensitivity of the contributions or the question of whether personal information of individuals could be disclosed. In the case of section 21, the FOI Act requires in each particular instance that the content of the particular record be considered in the light of the protections provided by that section The release of material in one particular report does not mean that sensitive or damaging material will also be released where it appears in further reports.

As I understand it, the HSE's position is that it would be difficult for it in a management context if the positions of staff members and their rights were not protected. Given my findings above in relation to the absence in the report of identifying detail of staff apart from the applicant, I am not convinced that it is reasonable to expect release of this particular record to cause serious harm extending to subsequent investigations. Indeed, as I understand it, part of the rationale behind the commissioning of further investigations into the complaints made was the safeguarding of the rights of the various parties. I accept that release of the record will not be without consequence or effect or may be regarded as resulting in an additional burden from the HSE'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 HSE's performance of its functions relating to management. It seems to me that both the concluded and the ongoing investigations relate primarily to the functions of the HSE and how the Hospital staff carried out those functions. I consider that a staff member questioned during the course of an investigation into patient care issues would, like any other employee, owe a duty of good faith to their employer which would include an obligation to disclose to their employer any information acquired in the capacity of employee, which the employer might reasonably require for identifying and or remedying deficiencies in the systems and procedures by which the employer conducts its operations. It is possible to envisage circumstances where the release of detailed contributions by staff in the context of a sensitive investigation would have significant adverse effect on management functions of a public body. However, I am not convinced that such circumstances exist in this particular case.

Having regard to the requirements of section 34(12) and the content of the report, I find that the HSE is not entitled to refuse access to the parts of the record concerned under section 21(1)(b) of the FOI Act.

Having found that the HSE has failed to justify reliance on the section 21(1)(a) and section 21(1)(b) exemptions, it is not strictly necessary for me to consider the application of section 21(2). However, for completeness, I will address the public interest test in the context of this case.

The Public Interest Test

Section 21(2) of the FOI Act provides:

"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".

To apply section 21(2), it is necessary to identify the various public interests served by the release of the particular record as well as those served by the withholding of that record. Relative weights must then be applied to these conflicting public interests and a judgement made as to which set of public interests outweighs the other.

In considering the public interest factors which favour withholding the records, I have taken the following into account, including those factors put forward by the HSE:

• the public interest in staff and members of the public being able to communicate their concerns and complaints to public bodies
• the public interest in public bodies being able to effectively investigate complaints and allegations against staff;
• the public interest in public bodies being enabled to perform their management functions effectively and efficiently particularly in relation to issues relating to the investigation of allegations.

I believe the following public interest factors in favour of the release of the records arise in this case:

• the public interest in individuals, including staff, being able to understand the reasons for courses of action taken by a public body;
• the public interest in members of the public knowing how a public body performs its functions, including the conduct of investigations into complaints, and being able to form an opinion as to whether those functions are being properly discharged;
• the public interest in members of the public having information relating to the quality of care provided for persons resident in institutions and
• the public interest in increasing the openness and transparency of the process of investigation of complaints by public bodies.

The HSE appears to be of the view that release of the record relating to the first investigation of allegations prior to the finalising of the subsequent investigation would be contrary to the public interest in that it might prejudice the new investigation. It says that material would be placed in the public domain which might later prove to be misleading or inaccurate. I do not accept this reasoning. Clearly, the methodology and extent of the new investigation is different to that previously undertaken and there can be no expectation that the conclusions and recommendations arising from it will be the same. The accuracy, or otherwise, of the information contained in the record is not a matter for the Information Commissioner to determine. The Commissioner has indicated in previous decisions that she does not accept that the possibility that the information once released will be used (or abused) in some particular way or misinterpreted or will not be properly understood is, generally speaking, a good cause for refusing access to the information. There are no provisions in the FOI Act to exempt the release of information on the grounds that it is inaccurate.

I consider that investigations into allegations of mistreatment of elderly people are matters of real public concern. There is a significant public interest in ensuring that there is openness and transparency as well as thoroughness in the handling of complaints by the HSE. The withholding of information, including outcomes and recommendations in reports, can adversely affect public trust in the ability of public bodies to effectively investigate and deal with complaints.

Having considered the matter carefully, I find that the public interest would, on balance, be better served by granting than by refusing to grant the request.

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 record in question.

Appeal

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.

Elizabeth Dolan

Senior Investigator

21 October 2008