Case 090023.Whether the HSE is justified in its decision to refuse access to a record comprising a review of acute services in HSE South on the basis that the record is exempt from release under the provisions of section 20(1) of the FOI Act. 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 review of acute services in HSE South on the basis that the record is exempt from release under the provisions of section 20(1) of 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: 21.05.2009

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

Background:

In an FOI request dated 28 October 2008, the Irish Medical News sought a copy of the report on a review of acute services in the HSE South. In its decision letter, dated 8 December 2008, the HSE refused access to the record in question claiming that it was exempt from release under section 20 of the FOI Act. On 12 December 2008 the applicant sought an internal review of the HSE's initial decision. As the HSE failed to give a decision within the prescribed time limit, this amounted to a deemed refusal of the internal review request. The applicant applied to this Office on 26 January 2009 for a review by the Commissioner of the HSE's decision. In a decision dated 28 January 2009, the HSE affirmed its initial decision, indicating that the report would be released "in the next number of months". However, the applicant indicated that she wished the Commissioner to continue with her review.

In conducting this review, I have had regard to the submissions of the HSE, including its most recent submissions, dated 12 March 2009, 1 April 2009 and 2 April 2009, as well as those of the applicant; the provisions of the FOI Acts and the contents of the record in question (which has been provided to this Office by the HSE for the purpose of this review). I note that a "preliminary views" letter, dated 18 February 2009 and additional comments, dated 24 March 2009, were sent to the HSE by Mr. Desmond O'Neill, Investigator, of this Office.

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. The HSE relied solely on section 20 of the Act in its decisions and submissions. Therefore, I do not intend to consider any of the other exemptions in the FOI Act.

Submissions

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Findings

Preliminary matter

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.

Section 20

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)."

I am prepared to accept, for the purposes of this decision, that the completed report, which, according to the HSE, is the subject of ongoing consultation with stakeholders, contains matter relating to the HSE's deliberative process. The HSE says that it intends to formally publish the report in question on 9 June 2009. The HSE believes that premature publication is likely to cause damage to planned consultation engagements with a range of stakeholders and would not serve the public interest.

Before the question of the public interest falls to be considered, any decision that a record qualifies for exemption on the basis of section 20(1) must first be considered in the context of the exceptions set out in 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,

(e) a report, study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a report containing opinions or advice of such an expert and not being a report used or commissioned for the purposes of a decision of a public body made pursuant to any enactment or scheme.

(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."

Section 20(2)(b)

It could be argued that parts of the report are not exempt under section 20 because they comprise factual information, being statistics of the existing hospital configuration and thus encompassed by section 20(2)(b) of the FOI Act. However, the situation under sections 20(2)(d) and 20(2)(e) seems to me to more definite in regard to the report as a whole so I will not undertake an analysis of the report to identify the factual elements which fall to be released.

Section 20(2)(d)

In regard to the functions of the HSE, I note that Objective 1 of the HSE Corporate Plan 2005 - 2008 states "We will improve people's experience of our services and their outcomes, through developing, changing and integrating our services, in line with best practice." The supporting goal listed at 1.5 says "We will reorganise our acute hospital services". The high level action plan in this Corporate Plan at 1.5.1 sets down as the action: "Develop proposals for the reorganisation and development of acute hospital services". The key deliverable is to be: "Review of existing distribution of regional and supra-regional services completed." The HSE Transformation Programme 2007 - 2010 sets out as one of the HSE's six transformation priorities "Configure hospital services to deliver optimal and cost effective results".

In his preliminary views letter, dated 18 February 2009, Mr. O'Neill drew the HSE's attention to these relevant exceptions which do not appear to have been considered at initial decision stage. He expressed the opinion that the record in question is a report of an investigation of the performance of the HSE in relation to its functions in regard to the optimum configuration of hospital based services for HSE South. The HSE, in its submission, dated 12 March 2009, says that the report in question is a review of hospital services in HSE South and not a review of the HSE's performance in relation to the optimum configuration of hospital services for HSE South. In the light of the statements in the HSE Corporate Plan and Transformation Plan, it is difficult to understand the distinction the HSE is attempting to make here. I agree with Mr O'Neill that the record at issue is a report of an investigation or analysis of the HSE's performance, efficiency or effectiveness in relation to its functions insofar as acute services are concerned. I find the report in question to be excluded from the section 20(1) exemption by virtue of the provisions of section 20(2)(d).

Section 20(2)(e)

The report contains the opinions and advice of external consultants (who, I take it, are scientific or technical experts in their field). It is not the case that any decisions of the HSE on foot of the recommendations of the report are being made pursuant to any enactment or scheme as required to put them outside of the section 20(2)(e) exception. Thus, the report in question also comes within section 20(2)(e) and so cannot be exempt from release under section 20(1) of the FOI Act.

Section 20(3)

If I had found above that section 20(1) applied to exempt the record from release, it would have been necessary to consider, in accordance with section 20(3), whether, on balance, the public interest would be better served by granting than by refusing the request.

Much of the HSE's submissions concentrate on public interest arguments in favour of withholding the record. The HSE says that material would be placed in the public domain which "would entail issue of a partial and potentially misleading description of current acute hospital services and recommendations regarding future acute hospital services in the region ..". It stresses the involvement of stakeholders and the fact that the report will be published when the consultation process has been completed. The HSE says that publication of the report in question, in the absence of full consultation and dialogue, will force interested parties to defend their hospitals and local communities.

Given my finding that section 20(1) of the FOI Act does not apply for the reasons explained above, I have no basis for finding, as the HSE argues that I should do, that any harm that disclosure might cause outweighs the public interest in granting 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 May 2009