Whether the HSE is justified in its refusal of access to records relating to the purchase of Our Lady of Lourdes Hospital, Drogheda, County Louth (the Hospital) in 1997 by reference to various sections of the FOI Act, including sections 6(4), 6(5)(a), 10(1)(a), 22(1)(a), 27(1)(b) and (c) and 46.

Case Summary

The Commissioner found that the HSE is justified in its refusal of most of the records on the basis that they were created before the commencement of the FOI Act for health boards on 21 October 1998 (section 6(4) of the FOI Act) or on the basis that they are exempt under section 22(1)(a) in that they would be exempt from production in proceedings in a court on the ground of legal professional privilege. She found that the HSE's decision to refuse access to certain records under section 27(1) is not justified and she directed the release of those records. Accordingly, she varied the decision of the HSE.

Date of Decision: 20.08.2009

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner

Background:

The FOI request which gave rise to this review was made by the applicants' Financial Controller on 25 September 2006. The request listed 19 categories of records covering minutes of meetings, legal opinions, annual reports, financial reports, audit reports, accounts, representations by public representatives, correspondence with insurance companies and others and related records concerning the purchase of the Hospital by the then North Eastern Health Board in 1997.

On 27 October 2006 the applicants clarified, at the HSE's request, some aspects of the original FOI request. They stated that the correspondence sought related to indemnification of claims and the handling of cases including those following the appointment of the State Claims Agency in July 2002 to deal with medical negligence cases. They said that information relating to individual patients was not required.  On 27 July 2007, the HSE released some records and said that it was claiming exemptions in relation to the others under sections 10(1)(a), 20(1)(a), 21(1)(c), 22(1)(a), 27(1)(b) & (c), 46(1)(c)(ii) and 46(2) of the FOI Act. It charged a fee based on 122 hours which it said were spent on searching for and retrieving relevant records. On 21 August 2007, the applicants applied for an internal review of the HSE's decision. In its internal review decision, the HSE affirmed the original decision and explained that certain records were created prior to the commencement of the FOI Act. It also referred to a number of records, which it said the applicants would already have in their possession given the fact that claims were made against the Medical Missionaries of Mary.  The applicants applied to my Office, on 17 December 2007, for a review of the HSE's decision.

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

• the FOI request and the responses to it together with the applicants' correspondence with the HSE;
• the correspondence between the parties involved and my Office;
• the contents of the records, and
• the provisions of the Freedom of Information Act, 1997, as amended by the Freedom of Information (Amendment) Act, 2003.

Scope of Review

Following correspondence with Mr Desmond O'Neill, Investigator of my Office, the HSE conducted further searches and located a large number of additional records which fall within the scope of the review. Clearly, the files of its legal advisers, BCM Hanby Wallace should have been examined by the HSE decision makers when the request was being processed. These contained many records relevant to the request which were under the HSE's control in that they were in the possession of an agent providing a service for the public body under a contract for services (Section 6(9) of the FOI Act). The discovery and scheduling of the additional financial and legal records took some considerable time but, by 5 February 2009, the HSE said that it had provided to my Office copies of all of the records together with schedules and responses to queries posed by the Investigator concerning the searches for various records. It also provided the applicants with improved schedules listing all of the  records.

In total, over 2000 records had to be considered. On 14 April 2008 and again on 25 February 2009, this Office invited the applicant to narrow the scope of the review by excluding records created before the commencement date of the FOI Act for former health boards (21 October 1998) in this case. The applicants decided that they were unable to narrow the scope of the review and that consideration of all of the withheld records was required. In submissions, the applicants complained that it was impossible to understand the reasons for refusal without having sight of the HSE's submissions or a meaningful description of its arguments. On 24 June 2009, Elizabeth Dolan, Senior Investigator of my Office outlined to the applicants the basis of the HSE's position. She explained that the submissions were quite general and did not address the content of individual records. She expressed the opinion that when taken together, the HSE's original decision, its internal review decision, the original and revised schedules together with Mr O'Neill's explanations set out in correspondence with the applicants and their representatives were adequate and that the applicants had had an opportunity to make their case. She also pointed out that the applicants had been made aware of this Office's application of the provisions of the FOI Act in relation to records created prior to the coming into force of the Act, to legal professional privilege and to other exemptions.

In a submission dated 9 July 2009, the applicants noted Ms Dolan's comments and reiterated their view that it was not possible for them to understand the basis for the HSE's reliance on the exemptions cited. They said that there is insufficient detail provided "to understand as to whether or not the exemptions invoked do actually apply to the records in question."

I am aware that there are some duplicates among the different files of records but all of the records which were numbered and scheduled by the HSE have been examined and are dealt with in this review. In the records most recently supplied by the HSE, my staff noted that some were created after  the FOI request was received by the HSE (27 September 2006); I have no jurisdiction to consider these records. My review is concerned solely with deciding whether or not the HSE is justified, in accordance with the provisions of the FOI Act, in deciding to refuse access to the records within the scope of the FOI request.

For reasons that will be clear from the "Scope" section above and from the analysis below, I consider that I must draw attention to the enormous amount of staff resouces which have been devoted to the processing of this request and review both in the HSE and in my Office. Whilst the applicants are, of course, entitled to exercise their rights under the FOI Act and the HSE's handling of the initial request was deficient in some respects, the fact remains that the number of records to which the applicants have a potential right to access under FOI is very small given the age and nature of the records.

Submissions

.

Findings

Preliminary Matters

Before dealing with the exemptions claimed by the HSE and with the submissions received, I should explain 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 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 constraints mean that I can give only a limited description of the records at issue.

I would also draw attention to section 34(12)(b) of the Act which provides that, in a review, "a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

My conclusion in relation to all of the records is as set out in the schedules attached to this decision which should be read in conjunction  with the HSE's more detailed schedules already provided. Given the substantial number of individual records involved, and with a view to making this decision reasonably coherent, I have, wherever possible, dealt in the decision with records on a ''group'' basis. I consider that my Office's approach in this case has been reasonable and is in line with the normal procedures followed by it in similar reviews.

In relation to the applicants' complaints that the HSE's schedules cover large categories of records without application of exemptions to the specific records at issue, I consider that this review is sufficiently thorough to ensure that all of the records have been examined by reference to the relevant exemptions. As will become clear from the analysis below, it was not necessary to consider several of the exemptions claimed. While the provision of schedules to identify records is undoubtedly best FOI practice, I note also that the FOI Act does not require the provision of schedules and I consider those provided by the HSE to be adequate in the circumstances of this case. In relation to the arguments made concerning, in particular, the detail as to what is contained in the records for which legal professional privilege is claimed, it is the purpose of this review to examine the content of the records while refraining from disclosing the content of the records as explained above.

I deal below with each of the provisions claimed as providing a basis for exempting records; but it is necessary, initially, to consider the relevance of sub-sections 6(4) and (5) of the FOI Act.

Pre-Commencement Records

Sections 6(4) & 6(5)

As provided for at section 6(4), a right of access under the FOI Act does not normally arise in the case of records created before the commencement date of the Act (21 October 1998 in the case of health boards). In this case, a large number of the records identified as relevant to the request were created before 21 October 1998. This is not at all surprising given that many of the events detailed in the records within the scope of the FOI  request took place in 1996, 1997 and 1998. Under Section 6(5) of the Act, however, there are two separate grounds on which (subject to the other provisions of the FOI Act) a right of access to pre-commencement records arises. These two grounds are:

• where it can be shown that access is necessary or expedient in order to understand a record created after the commencement date [section 6(5)(a)], or
• where the pre-commencement records relate to personal information about the person seeking access to them [section 6(5)(b)].

Section 6(5)(a)

As explained to the applicants in Mr O'Neill's letter of 14 April 2008, a high level of proof is required in order to support a claim based on section 6(5)(a). It would be necessary for the applicants to point to a particular document or record, created after the commencement date, and show why they could not understand it without having access to another (pre-commencement) document. 

The applicants' attention was drawn to a number of previous published decisions of my Office dealing with the application of section 6(5)(a) - principally Case Number 98117 (Mr. ABE and the Department of the Marine and Natural Resources) and Case Number 98169 (Mrs. ABY and the Department of Education and Science).  These decisions set out a clear approach to interpreting the phrase "necessary or expedient in order to understand ..." which I adopt here. I take the view that this provision is directed, not at the question of whether a record can be understood, in a literal sense, without reference to earlier records, but at whether its substance (or gist or subject matter) can  be understood. These decisions make it clear that the fact that a document does not contain all the information that a reader might wish to have does not mean that the substance of a document cannot be understood.  In these decisions, the word "expedient" is defined as "fit, proper or suitable to the circumstances of the case".

Despite being advised of the proof required to satisfy section 6(5)(a) of the Act, the applicants have not identified any document, created since 21 October 1998, the understanding of which requires that they have access to the pre-commencement records which are the subject of this review. Instead, the applicants argued that it was impossible for them to be able to point to any such document because they had received "so little information" from the HSE. They further submitted that access to many of the records listed on the schedules provided was necessary to enable them to understand the documentation provide by the HSE and said that the records should be furnished "within the spirit of the FOI Acts and as a matter of goodwill".  In all the circumstances, I have no basis for concluding that access to the pre-commencement records is necessary or expedient to understand any particular post-commencement record. I note that although a date was not recorded for all of the records in the HSE's  schedules, all of the records have been examined. It is my view that, in many instances, the pre-commencement records on the legal files would, in any event, fall to be withheld as exempt under section 22(1)(a) of the FOI Act.

Section 6(5)(b)

A right of access to pre-commencement records exists where those records relate to personal information, as defined in the FOI Act, about the requester. As the records do not contain the personal information of the Medical Missionaries of Mary, no entitlement to the pre- commencement records arises under this sub-section.

Accordingly, I find that neither section 6(5)(a) nor (b) apply to the  pre-commencement records (which are identified in the schedules attached). The FOI Act does not apply to them and it is not necessary for me to consider whether such records may be exempt under any other provision. 

Section 22(1)(a) - Legal Professional Privilege

Section 22(1)(a) of the FOI Act provides that a request for access to a record shall be refused if the record concerned "would be exempt from production in proceedings in a court on the ground of legal professional privilege"

Legal professional privilege enables a client to maintain the confidentiality of two types of communication:

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

My Office's examination of the records shows that, in many instances both limbs of legal professional privilege would apply. For example, in record 23 of BCM Hanby Wallace file 7, the written legal advice of the solicitor concerned as to material to be included in a letter to one of the parties also has, as its dominant purpose, preparation for the defence in relation to claims made. Again, this should come as no surprise to the applicants given their knowledge of the claims.

I have considered whether some of the legal records for which exemption under section 22(1)(a) is claimed in the HSE's schedules contain "legal assistance" as opposed to legal advice or material the dominant purpose of which is preparation for litigation. My understanding of the Supreme Court's  application of the term  "legal assistance" in Smurfit Paribas Bank Limited v. A.A.B. Export Finance Limited [1990] 1 I.R. 469 to material which is not privileged from disclosure is that it does not go beyond - in the words of McCarthy J's judgment - "communication of fact leading to the drafting of legal documents and requests for the preparation of such..." There is also a small number of records which do not, on the face of them, contain confidential legal advice or material the dominant purpose of which is preparation for litigation.  In this respect, I find that the following records which relate to registration of title and drawing up of other documents do not qualify for legal professional privilege:

File of records received from HSE on 5 February 2009: 3D - 3D.1 (letter 16/5/00 to Finance Officer NEHB); 3D.19, 3D25-3D26; 3D45

File 6 of BCM Hanby Wallace:  record 10.1

File 5 of BCM Hanby Wallace: records 91-93, 210-211, 212-219

File 3 of BCM Hanby Wallace: records 180-181

Section 27 - Commercial Sensitivity

The HSE claim exemptions for some of the records under sections 27(1)(b) and 27(1)(c) of the FOI Act. The records involved comprise billing and fee payment issues involving legal advisors as well as copies of insurance policies. As regards the billing information, the records were created prior to the commencement of the FOI Act so it is not necessary for me to consider them under this exemption. Also, in their most recent submissions, the applicants said that they were not interested in Counsel's or solicitors' fees or in invoices for telephone services.

Section 27(1) 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 theinformation 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, or

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

The tests in section 27(1)(b) and (c) are based, not on the nature of the information, but on the nature of the harm which might be occasioned by its release. The standard of proof required to meet these exemptions is relatively low in the sense that the test is not whether harm is certain to materialise, but whether it  might do so.

As regards the insurance policies in respect of which the HSE claims the section 27 exemptions I am not satisfied that it has made out a case which meets even the low threshold of proof required to sustain a section 27 claim. I consider that the HSE's assertion that the release of the insurance policies could reasonably be expected to effect the competitive position of the insurer and place it in an unfavourable position in contractual negotiations is not sufficient for me to uphold its decision given the age of the records and their content. This view is supported by 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...".

Accordingly, I find that the following records are not exempt under section 27 of the FOI Act:

File of records received from HSE on 5 February 2009: 10- 10.133.

Section 10(1)(a) - are additional records held?

Among the exemptions cited by the HSE is section 10(1)(a) of the FOI Act. It said that some of the records sought in categories 1, 2, 4, 5, 6,7,8, 12 and 19 could not be located and that the records did not exist. Whilst some of the categories of records originally exempted by the HSE under this section came to light in the course of the review, others did not.  I take it therefore that the applicants require that I deal with this exemption insofar as it relates to any records created since 21 October 1998 although I note that they have not made any substantive case in relation to particular additional records that they believe are held.

Section 10(1)(a) provides that access to a record may be refused if  "the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken".  In cases such as this, my role is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public body in looking for relevant records.  The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the records management practices of the public body insofar as those practices relate to the records in question.  On the basis of the information provided, I form a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found.   It is not normally my function to search for records.  

I should also explain that, in implementing the terms of the FOI Act, the Commissioner is primarily concerned with ensuring public access to extant records in accordance with the provisions of the Act.  The Act does not provide for a right of access to records which ought to exist.  Therefore, the Commissioner does not have the authority to require a public body to create records where such records do not exist or are not held by it.  It is also outside the remit of the Information Commissioner to adjudicate on how public bodies perform their functions generally.

The Commissioner's approach in search cases was upheld in a decision of the High Court in the case of Matthew Ryan & Kathleen Ryan and the Information Commissioner (2002 No. 18 MCA).  In his decision, Mr. Justice Quirke stated:  "I am satisfied that the respondent's (the Commissioner) understanding of his role, as outlined in evidence, was correct in that he was not required to search for records but was required rather to review the decision of the Department and in doing so to have regard to the evidence which was available to the decision-maker and tothe reasoning used by the decision-maker in arriving or failing to arrive at a decision".

The HSE states that searches were conducted of archived records stored off-site as well as in the offices of its Finance Department in Kells, the office of the HSE Director Of Finance, the Patient Liaison Office at the Hospital, the Network Hospital Manager's Office at Kells and Ardee, the offices of BCM Hanby Wallace, Solicitors and the office of the CEO of the HSE. Signed statements from personnel involved in the searches were provided to my Office. Amongst these were correspondence from senior staff and former staff such as Messrs Paul Robinson, Ambrose McLoughlin and Seoirse O'hAodha stating that they hold no records relating to the purchase of the Hospital.

In view of the evidence provided, the additional records discovered in the course of the review and the responses of the HSE to my Investigator's queries, it is clear to me that the HSE has taken all reasonable steps at this stage to find the relevant records and that it is reasonable to conclude that no further records can be found. I am therefore satisfied that section 10(1)(a) of the FOI Act applies and I find accordingly.

Records outside of scope?

In some of the HSE's schedules there are records withheld on the basis that they are ''outside of scope of request''. The majority of these records were created before 21 October 1998 or are exempt as qualifying for legal professional privilege and therefore, I will not consider them further. In relation to the remainder, it is difficult in some instances to be sure if the ''miscellaneous" items in the files were appended to relevant correspondence. It could be argued that, if the records were not relevant to the request, they should not have been numbered and scheduled by the HSE. However, it is not uncommon to find items of realtively little relevance to the key issues filed, for example, with financial and contract documents and it would be time consuming to separate those out. One example of this is the appearance of pharmacy stocktaking papers on the Finance file; these records are clearly not within the scope of the request. Furthermore, some records are undated. I consider that the following records can be taken to fall within the scope of one or more categories of the records requested and, as their exemption has not been justified by the HSE, I find that they should be released:

File 1 of Finance files received from HSE 4 February 2009: records 10, 119-120.

File 2 of Finance files received from HSE 4 February 2009: records 23-26, 45-54, 56-59, 61-66.

File of records received from HSE on 5 February 2009: 3D48-3D51; 3D53; 58; 3D59-63;

File 8 of BCM Hanby Wallace: 50-53 and 118-121 (undated)

File 6 of BCM Hanby Wallace:  records 20.40-20.45

File 5 of BCM Hanby Wallace: records 94-101: 102;256-260; 261-265.

File 3 of BCM Hanby Wallace: records 2 - 3.

Other Exemptions?

The HSE mentioned some other sections of the FOI Act in its decisions and in its submissions. It seems that the HSE is no longer relying on sections 20 and 21. As regards sections 12,19 and 28, it appears that the records concerned do not fall to be considered by virtue of the fact that they were created before the coming into operation of the FOI Act for the former health boards as discussed above. In regard to ordnance survey map extracts on the files, I find that the HSE is correct in its treatment of these on the basis that section 46(2) of the FOI Act provides that the Act does not apply to records available for inspection or purchase by member of the public.

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 direct instead that the HSE give the applicants access to the records identified for release in the schedules which accompany this decision and which form part of it.  I affirm the decision of the HSE to refuse access to the remainder of  the records.

Right of 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.  

Emily O'Reilly

Information Commissioner

20 August 2009