The Senior Investigator found that the HSE is not justified in its refusal of access to certain records under various sections of the FOI Act. She varied the decision of the HSE and directed the HSE to release most of the records at issue. She affirmed the HSE's decision in respect of some records which she found it was entitled to withhold under section 22(1)(a) of the FOI Act.

Case Summary

Whether the HSE is justified in its decision to refuse access to additional records relating to the development of primary care centre or primary care team in Killarney under sections 20, 21, 22, 26, 27 and 28 of the FOI Act.

Date of Decision: 10.08.2010

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

Background:

The Applicant wrote to the HSE on 15 August 2008 requesting access to documentation in relation to the development of a primary care centre or primary care team in Killarney for the period 1 September 2007 to 15 August 2008. He specifically requested access to:

• a copy of any draft agreement or copies of any records or minutes or agenda of meetings relating to the development of a Primary Care Centre in Killarney

• copies of any correspondence between General Practitioners in Killarney and the HSE

• any information about the sale of HSE owned land to the GP's

• a copy of any correspondence between the HSE and the Department of Health and Children regarding the development of a Primary Care Centre in Killarney.

On 8 October 2008, the HSE issued a decision granting access to some records and withholding certain records on the basis of sections 20, 21, 22, 26, 27 and 28 of the FOI Act. The Applicant requested an internal review of this decision on 29 October 2008. The HSE in its internal review decision of 20 November 2008 upheld the original decision. In both decisions, the HSE said that, on balance, the public interest in refusing the request outweighed the public interest in the applicant having access to the records.

The Applicant wrote to this Office on 5 December 2008 seeking a review of the HSE's decision. I note that Ms Alison McCulloch, Investigator of this Office, wrote to the HSE on 7 September 2009 setting out her preliminary views on this case and that the HSE responded to these views. I also note that Ms McCulloch wrote to Alpha Healthcare Ltd. and O'Connor, Kelliher & Treacy, representatives of the third parties in this case - persons who could be affected by the release of the records for their views. 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 Applicant (including those he made to the HSE) and the third parties. 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.

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. It appears that, with the abandonment of the proposal in relation to the HSE site, the main basis for its continued refusal of the request lies in section 27 of the FOI Act which is concerned with commercially sensitive information.

Submissions

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Findings

Preliminary Matters

The HSE, in its decision of 8 October 2008 identified 3 files which contained the records requested, File No.1 780(A), File No. 2 186A and File No. 3 684C. On 19 January 2009 the HSE contended that 4 records were outside the scope of this review. Having examined those records, I agree with the view of the HSE that records numbered 9, 17, 20 and 21 on File No. 2 186A are outside the scope of this review as they do not refer to the Primary Care Centre.

The records at issue, according to the HSE, refer to discussions that it had ''with approximately 12 Killarney GP's over the last number of years with regard to the development of a Primary Care Centre which would accommodate all of the Killarney GP's and the majority of the HSE's primary care staff and network staff in one building. " It contended on 16 October 2009 that planning permission had been refused and that ''a decision on an appeal to An Bord Pleannála (sic) is pending at present'. " According to the HSE, ''the GP consortium is still in consideration of this issue particularly in relation to the overall financial parameters of the proposed development. Therefore, further ongoing detailed negotiation, including financial arrangements, is likely to recommence between the GP consortium and the HSE."

On 28 May 2010, Ms McCulloch requested an update from the HSE on the appeal to An Bord Pleanála. The HSE stated that the appeal was rejected and that ''the arrangement on the development of the Primary Care Unit on the St. Finans site is not going ahead. The GPs are now making arrangements on an alternative site not in the ownership of the HSE'. On the basis of this information, Ms McCulloch enquired from the HSE if it would now agree to release the withheld records as it seemed that there would be no further negotiations with the GP consortium. The HSE responded that it did not favour releasing the records ''on the grounds of commercial sensitivity." The Applicant indicated that he was still interested in having access to the records.

It should be noted that a review by the Commissioner under section 34 of the FOI Act is de novo, which means that the Commissioner must decide afresh upon the request in the light of the facts and circumstances prevailing at the time of the review.

Analysis and Findings

Section 22(1)(a) - legal professional privilege

The HSE relied on section 22(1)(a) to refuse access to records numbered 21, 29 and 32/33 on File No. 1 780(A). 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.

I have considered whether 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..." In this respect, I find that record 21 and page 1 of record 29 which relate to arrangements for a meeting and drafting of documents but do not disclose confidential legal advice either sought or given do not qualify for legal professional privilege.

In relation to records 29 (apart from page 1) and 32/33, I am satisfied from my examination of these records that they do communicate some confidential legal advice from lawyer to client and thus qualify for exemption under section 22(1)(a) of the Act. I find accordingly.

Section 27 - commercially sensitive information

It is appropriate here to refer to 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...".

In its latest submission after the proposal for the project had been abandoned, the HSE identified section 27 as the key exemption in support of its refusal of access to the remaining records. Section 27(1)provides:

"... a head shall refuse to grant a request under section 7 if the record concerned contains ......(a) trade secrets of a person other than the requester concerned, (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 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, 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) 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.

It seems to me that the legal person whose interests are sought to be protected is the consortium of GP's who are represented by Alpha Healthcare Ltd. The HSE has not pointed to any particular positions or commercially sensitive detail in the records which would damage its own interests if released. Indeed, many of the records to which section 27 was originally applied by the HSE contain little or no information about negotiations or any commercial transaction in that they are notifications of meetings, specifications and design layouts etc. However a few records could, arguably, be said to contain information about the HSE's own role in the proposals for the land in its ownership. Ms McCulloch wrote to Alpha Healthcare seeking its views, on behalf of the GP's, on release of the withheld records including of the proposed lease, purchase of the site and negotiations between parties. In a letter dated 25 June 2010, Alpha Healthcare stated that it had no objection to the release of the records.

Section 27(2)(a) of the FOI Acts provides:

(2) A head shall grant a request under section 7 to which subsection (1) relates if-

(a) the person to whom the record concerned relates consents, in writing or in such other form as may be determined, to access to the record being granted to the requester concerned.

It is my view therefore that section 27(2) applies to the withheld records insofar as the person to whom the records relate, Alpha Healthcare, representing the consortium of GP's, consents to the release of the records. In any event, even if I was to take it that some parts of the records could disclose the HSE's negotiations, financial or other commercially sensitive details about its landholding and proposals for it with results likely to cause section 27(1) to apply, there is a further provision within section 27, at sub-section (3), which provides for the release of information which is commercially sensitive where such release is in the public interest. I will go on to consider section 27(3) of the Act in relation to this case.

Section 27(3) of the FOI Act provides that the exemptions contained in section 27(1) are not to 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 records :

• the public interest in the right of the public to have access to information,
• the public interest in members of the public knowing how a public body performs its functions, and being able to form an opinion as to whether those functions are being properly discharged,
• the public interest in individuals being able to understand the reasons for courses of action taken by a public body,
• the public interest in public bodies being accountable for use of public funds,
• the public interest in having information on a matter that is of serious interest to the community.

I have also considered the following public interest factors which favour refusing access to the records,

• the public interest in members of the public / business community being able to communicate in confidence with public bodies, without fear of disclosure,
• the public interest in supporting an environment conducive to the conduct of business,
• the public interest in public bodies being enabled to perform their functions effectively, including commercial transactions involving land or other property.

In terms of balancing the competing public interests at issue here, I believe that the advantages in terms of openness and accountability of disclosing the information in the records in question outweigh any possible harm to the HSE or the GP's and that the public interest is better served by the release of these records. In relation to the HSE's interests in the lands and any future proposals for them, I have not been provided with any argument or example of particular information that, if released, would cause prejudice or financial loss of the type envisaged by section 27(1). In the circumstances, given that the negotiations and the valuation took place in 2007 at a time of very different economic outlook, it is my view that the public interest arguments for releasing the records in question outweigh the public interest arguments for withholding those records.

My finding is that the HSE has not justified its reliance on section 27 of the Act to refuse access to the records. For completeness, I will address the other exemptions relied on in the original HSE decision.

Section 20 - deliberations of public bodies

Given that section 20, in broad terms, is intended to protect a deliberative process of a public body, one can reasonably expect that a public body, seeking to rely on section 20(1), will say why, in its view, release of the records will have a detrimental effect on the particular deliberative process in question. The HSE, in its submission of 16 October 2009 argued that "the GP consortium is still in consideration of this issue particularly in relation to the overall financial parameters of the proposed development. Therefore, further ongoing detailed negotiation, including financial arrangements, is likely to recommence between the GP consortium and the HSE". Certainly, the records do contain matter relating to the deliberative process while the project was still being considered. However, the HSE, on 2 June 2010, confirmed that the development of the Primary Care Unit on St Finian's site is not going ahead so that no further process is ongoing. It seems to me also that the factual information in the records would be outside of the section 20 exemption by virtue of section 20(2). Accordingly, I find that section 20(1) of the FOI Act does not apply to these records. Under section 20(3), I further consider that the public interest arguments already discussed above would be sufficiently strong to dis-apply the section 20(1) exemption in the circumstances of this case.

Section 21 (1)(c) - negotiations of public bodies

Section 21(c) provides protection for negotiating positions of the Government or public body and the only requirement for the exemption to be met is that release of the records would disclose such positions. Some of the records may outline positions taken by the HSE at one stage although, in the main, I think these are known to the GP's consortium. I can see nothing in the records which would disclose positions to be taken, or plans, procedures, criteria or instructions to be used or followed in any future negotiations. In previous decisions (see, for instance, X and the Department of Enterprise, Trade and Employment. Case No. 98166 on www.oic.ie), the Commissioner has held that a record is capable of qualifying for exemption under section 21(1)(c) despite the fact that any negotiating positions, plans etc. which it might disclose relate to past negotiations. It is legitimate to consider this in the context of the public interest balancing test in section 21(2). In other words, if the HSE had pointed to elements in the records the disclosure of which might reveal positions taken which could be expected to prejudice future negotiations, this would be considered in the context of the public interest. In this case, I find that section 21 does not apply to the withheld records and in any event, having regard to the considerations listed above in relation to section 27, I conclude that the records would fall to be released on the basis of the public interest provision at section 21(2).

Section 26 - information given in confidence

It is not clear from the HSE decisions as to whether section 26(1)(a) or section 26(1)(b) was the exemption claimed . It seems from a submission made in the course of the review that section 26(1)(b) is the relevant exemption and that it was applied to a small number of records. The HSE has not identified any other party to whom any duty of confidence is owed and I take it that any information given in confidence was given to the public body by Alpha Healthcare on behalf on the GP consortium. As the latter has agreed to the release of the withheld records, it follows that the ''confider'' no longer views the information as having been supplied in confidence. I find therefore that section 26 of the FOI Act does not apply to the withheld records.

I note that in releasing some records, the HSE deleted the names and email addresses of persons other than its staff and contractors. I am not satisfied that the names of those persons who were in contact with the HSE in the context of their business comprise personal information within the definition at section 2 of the FOI Act so that they are exempt under section 28 or otherwise. However, if the HSE is aware that email addresses comprise personal information within that definition, these may be deleted from the copies to be released on foot of this decision as the Applicant has indicated that he does not require the names of individuals.

Decision

Having carried out a review under section 34(2) of the FOI Act 1997, as amended, I hereby vary the decision of the HSE in relation to the Applicant's request. I direct the release of the withheld records with the exception of records numbered 9, 17, 20 and 21 on File No. 2 186A which are outside the scope of this request and records 29 (apart from page 1) and 32/33 on File No. 1 780(A) which qualify for exemption under section 22(1)(a) of the FOI Act.

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 on which notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan

Senior Investigator

10 August 2010