Case 090130. Appeal by the person to whom the information relates against the decision of the HSE to grant a request for access to a record (report of an accident at the Applicant's premises) on the basis that, while the record qualifies for the exemption at section 27(1) (b) of the FOI Act, the public interest would, on balance, be better served by the granting of the request . The HSE decision was taken in accordance with section 27(3) of the FOI Act. This was a request to which section 29 of the FOI Act applies.

Case Summary

The Senior Investigator affirmed the decision of the HSE having found that the balance of the public interest is better served by the granting of access to the report to the requester.

Date of Decision: 12.08.2009

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

Background:

The HSE decision to grant access to the record followed an FOI request for the "full and comprehensive report generated by the HSE" in relation to an accident at the Applicant 's premises on 10 September 2008. On 21 April 2009, the HSE advised the Applicant that an FOI request had been received for access to the report and that it (the HSE) planned to release the report within "the next seven days". The HSE asked whether the Applicant had "any objection to the release of this report ."

The Applicant, in response, set out reasons for objecting to the release of the report.

Subsequently, on 6 May 2009, the HSE issued its decision on the FOI request to the requester . That decision granted access to the report, in the public interest, with a 'stay' of two weeks on the granting of access in order to afford the Applicant, as the third party whose interests may be affected, an opportunity to apply directly to the Commissioner for a review of that decision

The Applicant applied to this Office on 21 May 2009 for a review of the HSE's decision. The application was accepted by the Commissioner as falling within the statutory timeframe on the basis of the Applicant having supplied documentary proof that the HSE decision was posted on 7 May 2009.

In conducting this review, I have taken account of the position of the HSE as well as the submissions of the Applicant (including those made to the HSE) and of the requester insofar as they are relevant.

The provisions of the FOI Acts and the contents of the record in question (a copy of which has been provided to this Office for the purposes of this review ), have also been considered.

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, Office of the Information Commissioner, authorised by the Information Commissioner ("the Commissioner") to conduct this review.

Scope of Review

The record at issue is the report prepared by HSE pre -school inspectors relating to an accident at the Applicant's premises on 10 September 2008. The scope of the review is confined to whether , or not the request should be granted on the basis that the public interest would be better served by granting rather than by refusing to grant the access requested (section 27(3) of the FOI Act refers).

Submissions

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Findings

Preliminary Matters

Section 29 is relevant in cases where the public body has decided that the record (s) in question are actually protected by one of the relevant exemptions in the FOI Act (i.e. sections 26, 27, 28 - relating to information that is confidential, commercially sensitive or personal information about third parties , respectively) but that, based on the application of a public interest test , the record(s) should be released. Where section 29 applies, the public body is required to consult with the affected third party before making a definitive decision on whether or not the existing exemption , found to apply, should be set aside in the public interest. If the third party, on receiving notice of the final decision of the public body, so wishes, he or she may appeal that decision to this Office directly .

Applying the section 29 context to this particular case, it is clear that the HSE found the records in question to be exempt from release under section 27 of the FOI Act on the basis that they are commercially sensitive. However, the section 27 exemption may be set aside where the public body (the HSE) decides that the public interest is better served by the records being released than by their being withheld. Although its notification to the Applicant did not make it clear that it was considering release in t he public interest under section 27(3) of the FOI, Act, it did consult the Applicant and, having considered the submissions, the HSE decided that the public interest is better served by the release of the records than by their being withheld . The Applicant exercised the right of appeal to this Office. However, in this type of case (requests to which section 29 of the FOI Act applies) the only matter with which this Office can deal is whether the public body has applied the public interest test correctly.

As set out at section 34(12)(a) of the FOI Act, where a decision to grant a request to which section 29 applies is being reviewed by the Commissioner, there is a presumption that the granting of the requested access is justified unless the person (to whom the information relates) "shows to the satisfaction of the Commissioner that the decision was not justified ". Thus, in this case, the onus is on the Applicant to satisfy the Commissioner that the decision to grant access in the public interest is not justified.

Finally, it should be borne in mind that the Commissioner's review is concerned only with the question of the right of access to the information requested and not with any aspect of the parties ' handling of the events concerned.

The Applicant's Submission

The Applicant contends that access to the report should not be granted for a number of reasons . In summary, these reasons include the following:

1. The Applicant believes the report to be inaccurate and not factual and refers to efforts being made to have the report itself reviewed,
2. The Applicant's solicitor is looking at the contents of the report with a view to taking any necessary action against the HSE, unless the report is reviewed and examined further . This is due to the number of false claims made in the report and also that it is based on assumptions and speculation.
3. Release of the report would be damaging both on a commercial and on a reputational basis.
4. Until such time as a review of the report is granted by the HSE and that the Applicant is happy with a fair and factual report, it would be damaging to release the report.

Essentially, the Applicant contends that the granting of access to the report would be damaging to the crèche business. The contentions of the Applicant, as summarised above, are relevant to this review insofar as they can be construed as public interest arguments . The fact that the record might not contain all of the information the Applicant might like it to contain , that the Applicant might feel the record should be amended or that the record might be misunderstood to any extent are not of direct relevance to this review. While it does not arise under the FOI Act, it is open to the Applicant to suggest to the HSE that , in releasing the record in question, in the interests of completeness, it might also provide the requester with a copy of the Applicant 's comments regarding the report. However, this is not a matter on which this Office can adjudicate.

Section 27(1)(b)

It is clear from its contacts with the Applicant that the HSE accepts that the record contains information which is commercially sensitive and that the exemption at section 27(1)(b) of the FOI Act is applicable.

Section 27(1)(b) provides that a head shall refuse to grant a request under section 7 if the record concerned contains

"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".

However, section 27(3) provides for circumstances in which the exemption at section 27(1)(b) can be dis-applied; that is where the head is of the opinion that the public interest in granting access to a record containing commercially sensitive information is greater than the public interest in refusing such access.

Section 27(3) - Public Interest Test

Section 27(3) of the FOI Act provides that the exemptions contained in section 27(1) do 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 .....".

I have considered the following public interest factors which favour the granting of access to the record:

• the public interest in openness and accountability in the conduct of business by public bodies generally, including the process of inspection and investigation of complaints in relation to crèches and pre-schools;
• the public interest in individuals 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 regulatory functions, and being able to form an opinion as to whether those functions are being properly discharged;
• the public interest in parents of children obtaining access to information concerning themselves or their children;
• the public interest in members of the public having information relating to the supervision , welfare, quality of care and level of security provided for children in crèches.

I have also carefully considered the public interest factors which favour the refusal of access to the record and which include the following:

• the public interest, recognised by the FOI Act itself, in protecting the right to privacy of members of the public;
• the public interest in members of the public / business community being able to communicate in confidence with public bodies, without fear of disclosure, in relation to sensitive matters;
• the public interest in supporting an environment conducive to the conduct of business ;
• the public interest in ensuring the flow of information to public bodies is not impeded.

It is important to bear in mind that the report is a complaint investigation report carried out on 26 September 2008 in response to a complaint made by telephone on 17 September 2008 in relation to an accident which occurred at the crèche on 10 September 2008. As such, it is a historic investigation report which is based on a visit to the crèche by two HSE officers . The report consists of an account of the verbal testimony of the Applicant and of crèche workers who were present on the day together with a summary of observations made during that visit and recommendations arising from the views and findings of the inspection team. While the Applicant is entitled to dispute the content, I have no basis for finding that the procedures followed were unfair or that the report is anything other than an unbiased report reflecting the findings of the two HSE officers . The fact that the Applicant disagrees with the content of the report does not mean that reports of this type must be withheld unless and until the content is jointly agreed between the crèche/pre-school and the HSE.

There is a strong public interest in the public being satisfied that pre-schools and crèches operate within the standards prescribed by law, in particular the Pre-School Services Regulation, 1996, Part 7, Child Care Act, 1991, which the HSE is required to enforce. The introduction of Children First - National Guidelines for the Protection and Welfare of Children , 1999 , also placed a heavy onus on the HSE and there is a significant public interest in the public being satisfied that the HSE performs its regulatory functions to the highest standards.

I find that the advantages in terms of openness and accountability of disclosing the information in the record outweigh any possible threat to the competitive position of the Applicant in the conduct of the business and that the public interest is better served by the release of the record . Accordingly, I find that section 27(1) of the FOI Act does not apply.

Section 28

Section 28(1) of the FOI Act provides:

"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".

In the Schedule of Records attached to its decision , the HSE decided that access to certain information in the report should be refused because the information is personal to individuals other than the requester and thus falls within the exemption at section 28(1) of the FOI Act. The HSE proposes to delete this personal information from the copy of the report and , given that the scope of this review is confined to the application of the public interest test at section 27(3), it is not open to me to consider section 28 of the FOI Act.

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 to the extent that it has decided that access should be granted in the public interest to the record which contains commercially sensitive information. In affirming the HSE's decision, I do so on the basis that access should be granted only to the information in the record as covered the HSE's decision of 6 May 2009.

Right of Appeal

A party to a review, or any other person affected by a decision of the Commissioner, following a review, may appeal to the High Court on a point of law arising from the decision. Any such appeal must be initiated not later that eight weeks from the date of this letter.

Elizabeth Dolan

Senior Investigator

12 August 2009