Case 090199. Whether the HSE is justified in its decision to refuse a request, made under section 7 of the FOI Act, for access to records held by the HSE on the basis that the 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 Section 23(1)(b) of the FOI Acts.

Date of Decision: 09.11.2009

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

Background:

The applicants made an FOI request to the HSE on 15 January 2009 for information as follows:

" the name and address of the person who reported an allegation to you and/or An Garda Siochána ...".

The HSE in a late decision dated 7 May, 2009 provided a schedule of the records covered by the request but refused to release the records in question and relied on Sections 23(1)(b) and 28(1) of the FOI Acts. The applicants applied for internal review of that decision on 20 May, 2009. On 2 July, 2009 the HSE notified the applicants that it had been unable to process the internal review application within the time frame set out in the FOI Acts and of their entitlement to seek a review from the Information Commissioner. As no decision issued from the HSE on that application within the period allowed, the applicants applied to this Office on 4 August, 2009 for a review, on the basis that the failure to give an internal review decision constituted, in effect, confirmation of the initial refusal [as provided for in section 41(2) of the FOI Act].

Following acceptance of this application for review this Office requested the HSE to examine the matter and inform both the applicants and this Office of its position. On 6 October, 2009 the HSE, decided to affirm its original decision to refuse access to the records.

In the course of this review, Ms Anne O'Reilly an Investigator from this Office spoke with the applicants' representative and put forward her preliminary view that the HSE's decision was likely to be affirmed by the Commissioner or her delegate. Ms O'Reilly outlined the approach taken by this Office in previous such cases, that is, that the name/identity of the person(s) who made the report to the HSE was exempt from release under Section 23(1) (b). The opportunity to make a further submission was declined and I consider that the review should now be brought to a close by the issue of a formal, binding decision.

In conducting this review, I have had regard to the submissions of the HSE as well as those of the applicants. I have also had regard to additional information and clarification provided by the HSE 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.

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

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 on the basis that they are exempt from release under the provisions of the Act.

Submissions

.

Findings

Analysis and Findings

According to the HSE, it holds three records which contain the information sought by the applicant. One record is a Standard Report Form completed by the HSE staff member to whom the allegation was made and the other two records are file notes which record times and details of telephone calls and discussions in relation to the matter. All three records contain the name(s) and contact details of the person(s) who made the allegation. I consider that the most relevant provision of the FOI Acts in the circumstances is Section 23(1)(b).

Section 23(1)(b)

"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 specific requirements must be met:

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 was given in confidence; and
3. that the information was supplied to the public body in relation to the enforcement or administration of the civil law.

First Requirement

In this case, the information sought by the requester is the identity of the person or persons who reported an allegation to the HSE . Therefore the first requirement under section 23(1)(b) is met.

Second Requirement

In relation to the second requirement, I must now address the issue of whether the information was given to the HSE in confidence. It is clear to me, considering the core statutory functions involved, that 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 HSE has argued that much information is received in confidence from people who do not wish to be identified. It has argued that, 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. I accept that, without an assurance or understanding that the information provided was being provided in confidence, such persons may be reluctant to provide the information. The development of a practice of revealing information relating to approaches to the HSE on child welfare issues could be seen as a barrier to people bringing their genuine concerns for children to the attention of the HSE. That carries a risk that genuine cases of child abuse or neglect might go undetected. In many cases, the HSE may find, on initial enquiry, that the circumstances are such as not to warrant any further intervention.

In this particular case, the HSE contends that the information was given to it in confidence, and that it is its normal procedure to accept such information as having been made in confidence. From my examination of the records it is clear that the person or persons involved indicated that they did not wish their identity to be made known and the HSE has confirmed that it accepted the information on a confidential basis. Accordingly, it is my view that the second test of the exemption is satisfied.

The applicants in this case may believe that the complaint was made maliciously. 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. In order to make a finding that the complainant was motivated by malice, some substantive evidence would be required. In the present case, there is no evidence available to justify a conclusion that the complaint was made in bad faith and with malice. The HSE has informed this Office that it has no reason to believe that there was any malicious intent or motive in relation to the referrer's contact with its social work department. In these circumstances, I accept the HSE's position that it is satisfied that the information was given in confidence by the complainant.

Third Requirement

Finally, the Child Care Act 1991 imposes a legal obligation on the HSE to investigate allegations of child abuse or neglect. Section 3(1) and 3(2)(a) of the Child Care Act, 1991 oblige the HSE to "promote the welfare of children in its area who are not receiving adequate care and protection" and provide that, in the performance of this function, it shall "co-ordinate information from all relevant sources relating to children in its area". Accordingly, it is my view that the information given does relate to the enforcement or administration of the civil law. On this basis I believe that the third requirement of section 23(1)(b) has been met.

The Public Interest

However, that is not the end of the matter as 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. On this basis, all of the requirements for the application of section 23(1)(b) have been satisfied.

I find, therefore, that under section 23(1)(b), the HSE is justified in its decision to refuse access to the withheld records

As I find that the records in question are exempt from release under the provisions of section 23(1)(b) of the FOI Act it is not necessary for me to consider any other exemptions claimed by the HSE.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision deemed to have been made by 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 a review must be initiated not later than eight weeks from the date of this letter.

Elizabeth Dolan

Senior Investigator

09 November 2009