Whether the HSE is justified in its decision to refuse a request for records concerning the applicant's premises made under section 7 of the FOI Act on the basis that some records and parts of records are exempt from release under various provisions of the FOI Act.

Case Summary

The Senior Investigator found that the HSE is justified in its decision to refuse access to the withheld records on the basis that they are exempt from release under sections 22(1)(a), 23(1)(b) and 28 of the FOI Acts.   

Date of Decision: 07.05.2009

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

Background:

The applicant made an FOI request to the HSE on 16 January 2008 seeking access to information "in relation to the Environmental Health Dept. on behalf of (name of his premises)"  The HSE scheduled a total of 87 pages of records. It released some records and  refused access to some records in its decisions of 29 February 2008 and 14 March 2008. The applicant applied for internal review of these decisions on 31 March 2008. As no response was received to the internal review request within the statutory period, the applicant applied to the Commissioner for review on 28 May 2008 on the basis of a deemed refusal. This Office asked the HSE to examine the matter and to inform this Office and the applicant of its position on the case. On 23 June 2008 the HSE wrote to the applicant upholding the original decision.

I note that Ms Alison McCulloch, Investigator of this Office, wrote to the applicant on 20 March 2009 setting out her preliminary views on this case and that the applicant responded on 6 April 2009. I consider that the review should now be brought to a close by the issue of a formal, binding decision as required by the applicant. 

In conducting this review, I have had regard to the submissions of the HSE as well as those of the applicant (including those made to the HSE). I have also had regard to additional information and clarification provided by the HSE at the request of this Office and to the provisions of the FOI Acts. I have examined the contents of the records, copies of which have been provided to this Office by the HSE for the purposes of this review.

Preliminary matters

In her preliminary views letter Ms McCulloch informed the applicant that the withheld records of diary notes on Tobacco File 2 referred to meetings with other clients of the Environmental Health Department and routine administrative issues and therefore are outside of the scope of this review. The applicant agreed that these records are of no concern to him. I understand that in the course of this review (on 5 May 2009), the HSE released records numbered 27 and 37-38. Using the numbering system adopted by the HSE, the remaining withheld records, are as follows:

Tobacco File 1 - records numbered 6-7(parts), 26, 28-29, 31-36, 40-41, 44, 61-64, and 67.

Food Hygiene File - parts of records numbered 1, 2 and 3.

Scope of Review

This review is concerned solely with the question of whether the HSE is justified in its decision to refuse access to the withheld records identified above on the basis that they are exempt from release under the provisions of the Act.

I have had regard to the provisions of section 34(12)(b) of the FOI 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."  This places the onus on to the HSE in this case of showing, to the satisfaction of the Commissioner, that the decision to refuse access to the records at issue in this case is justified under the provisions of the FOI Act.

I should point out also that the Commissioner's role in conducting a review under section 34 of the FOI Act is to carry out a de novo review. this position was recognised in the High Court judgment of Mr Justice Ó Caoimh in the case of The Minister for Education and Science v Information Commissioner[2001] IEHC 116. More recently, it was accepted and elaborated on by Mr Justice Quirke in his judgment in the case of The National Maternity Hospital and The Information Commissioner [2005]No.49 MCA where he (Mr Justice Quirke) noted:

"The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

Submissions

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Findings

Section 22(1)(a)

The HSE relied on sections 22 and 23 of the FOI Act to refuse access to records numbered 26, 28-29, 31-36, 40-41, 44, 61-64 and 67 on the Tobacco File 1. Section 22(1)(a) is the more relevant section to consider in this case. It provides that:

"A head shall refuse to grant a request under Section 7 if the record concerned -

(a) would be exempt from production in proceedings in a court on the ground of legal professional privilege".

The issue here is whether the records in question would be exempt from production in a court on the ground of legal professional privilege.  In considering this matter, I have to ignore the likelihood or otherwise of court proceedings taking place. The question comes down simply to whether or not the HSE would succeed in withholding the documents on the ground of legal professional privilege in court proceedings.

Legal professional privilege enables the client to maintain the confidentiality of two types of communication being "advice privilege" and "litigation privilege":

1. confidential communications between a professional legal adviser and a client in the course of a professional legal relationship, made for the purpose of giving or receiving legal advice; and
2. confidential communications between a professional legal adviser and either a third party or the client; or between the client and a third party; or between the client and professional legal adviser, the dominant purpose of which is the preparation for contemplated or pending litigation.

I have examined each of the records identified above in order to decide whether this exemption is justified on the basis of the understanding of legal professional privilege set out above.  I consider that it is clear from the content of the records and the circumstances of their creation that the dominant purpose of their creation was the preparation for pending litigation. In addition, the content of the records reveals confidential legal communications between client and lawyer for the purposes of giving or receiving legal advice.  Accordingly, I find that section 22(1)(a) applies to records numbered 26, 28-29, 31-36, 40-41, 44, 61-64 and 67 on the Tobacco File 1.

Section 23(1)(b)

The HSE refused access to records numbered 6-7 on Tobacco File 1 under section 23(1)(b) of the FOI Act which provides:

"23(1) A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to ...

(b) reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence".

In order for this exemption to apply, three separate requirements must be met, i.e.

1. that release of the withheld details could reveal, whether directly or indirectly, the identity of the supplier of the information;
2. that the information in the record must have been given in confidence, and,
3. that the information must have been supplied to the public body in relation to the enforcement or administration of the civil law.

First Requirement

Having examined the records in question, I find that their release would reveal the identity of person(s) who gave the information to the HSE. Therefore, I find that the first strand of the exemption is met.

Second Requirement

It is clear to me that, considering the statutory functions involved in the area, it is necessary for HSE officials, in the course of their duties, to be in a position to receive necessary information in confidence from members of the public. The content of the record indicates that the individual(s) involved did not wish to be identified and gave information in confidence. If people providing information to the HSE in such cases were not reassured as to confidentiality, the information gathering process would be compromised by the withholding of such information.

In determining whether the information was provided in confidence, the issue of whether it was provided in good faith is a factor to be considered. Malicious allegations, which are known to be false, cannot be regarded as having been made in good faith and it is difficult to see how, in such circumstances, they could be regarded as having been made in confidence. It is also arguable that where information known to be false is given maliciously, with the intent of causing injury or distress and without assisting the enforcement or administration of the civil law, section 23(1)(b) should not apply. The applicant argued in his letter of 6 April 2009 that "a complaint may be made by a competitor for reasons of bias or seeking to obtain a competitive advantage plus for ill-will".  In this particular case I have no information on which to make a finding that the complaint had malicious motives. In order to reach such a conclusion that there was malice involved, some evidence would be required. On the face of it, the information given was supplied to the HSE in confidence and meets the second requirement of section 23(1)(b) of the FOI Act. .

Third Requirement

The Public Health (Tobacco) Act 2002 as amended by the Public Health (Tobacco) (Amendment) Act 2004 requires the HSE to ensure compliance with the provisions of the Acts. The information in this case was given to the HSE in relation to the enforcement or administration of that Act. On this basis I find that the third requirement of section 23(1)(b) has been met.

Section 23(3) provides that section 23(1)(b) does not apply in certain specified circumstances where the public interest would, on balance, be better served by granting than by refusing to grant the request.  It is important to note that the public interest balancing test in section 23(3) differs from the public interest balancing test which exists in other exemptions in that the test in section 23(3) may be considered only where certain circumstances arise.  Those circumstances are where the record discloses that an investigation is not authorised by law or contravenes any law, or it contains information concerning the performance by a public body of functions relating to law enforcement or contains information concerning the effectiveness or merits of any programme for prevention, detection or investigation of breaches of the law.  I am satisfied that no such circumstances arise in this case and that section 23(3) does not apply. I find, therefore, that the HSE is entitled to rely on the exemption in Section 23(1)(b) in respect of the withheld parts of records 6 and 7 on Tobacco File 1. 

Section 28

The HSE relied on section 28 to refuse access to parts of records numbered 1, 2 and 3 on the Food Hygiene File. I accept (and have seen from my examination of the records in question) that the records at issue in this case do disclose personal information regarding individuals other then the requester.

Section 28(1) of the Act provides that "Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information".

Section 28(5B) of the FOI Act provides:

"(5B) Notwithstanding paragraph (a) of subsection (2), a head shall, subject to paragraphs (b) to (e) of that subsection and subsections (5) and (6), refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would, in addition to involving the disclosure of personal information relating to the applicant, also involve the disclosure of personal information relating to an individual or individuals other than the requester."

In her preliminary views letter, Ms. McCulloch set out in some detail the basis for her view that the HSE was justified in its reliance on section 28 of the FOI Act to refuse access to these records. I do not intend to repeat the detailed content of the preliminary views letter but its contents are relevant for the purposes of this decision. The FOI Act provides strong protection for personal information where it is sought by a person other than the person to whom the information relates. Ms McCulloch explained that the records contained information about third parties as well as information about the applicant which is closely intertwined with the personal information of other individuals.

The Public Interest

There is a limited number of exceptions to the provisions of section 28 of the FOI Act. As Ms McCulloch advised, consent to release their details to the applicant has not been sought from the other person(s) concerned so as to apply section 28(2)(b), nor would it be appropriate to do so in the case at hand. I do not consider that release of the information would "benefit the individual" to whom it relates as envisaged by section 28(5)(b) of the FOI Act.

Section 28(5)(a) provides for the release of personal information relating to third parties where the public interest that the request should be granted outweighs the right to privacy of the individual(s) to whom the information relates. Ms McCulloch identified various public interest factors in favour of the release of the particular records as well as the privacy interests served by the withholding of the records. Weighing against release is the very strong public interest in protecting privacy rights, which is reflected in the language both of section 28 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY"). Furthermore, the right to privacy has a Constitutional dimension as one of the unenumerated personal rights under the Constitution.

Having considered the matter carefully, I am not satisfied that the public interest served by the release to the applicant of the records at issue is of sufficient weight so as to displace the right to privacy of the individual(s) concerned. I am satisfied that the limited amount of information withheld would not, in the circumstances of this case and having regard to material already released add substantially to the applicant's understanding of the HSE's role in relation to  his premises. I find, therefore, that section 28(5)(a) does not apply in this case and that the records are exempt from release by virtue of section 28(1) and/or section 28(5B) of the FOI Act. Accordingly, I find that the HSE is justified in its reliance on section 28 of the FOI Act in relation to the withheld parts of records 1, 2 and 3 on the Food Hygiene File. 

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby affirm the decision of the HSE in this case. 

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 the decision.

Elizabeth Dolan

Senior Investigator

07 May 2009