The Information Commissioner found that the HSE had not justified its refusal of the request by reference to sections 20, 21, 26 and 27 of the FOI Act. She was critical of the HSE's handling of the request and of the review. She directed the release of the records.

Case Summary

Whether the HSE is justified in its decision under section 20 of the FOI Act and various other exemptions subsequently relied upon to refuse access to records sought under section 7 of the Act. The withheld records comprise correspondence between a named official of the HSE and a private ambulance service and records of amounts paid to that company, including any payments made as a result of a High Court case in 2008.

Date of Decision: 12.03.2010

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

Background:

The FOI request made on 17 March 2009 sought:

1. A full breakdown of expenses, including benefit in kind, paid to Mr Frank McClintock since he became head of the HSE's national ambulance service;
2. Phone records showing calls from Mr McClintock's mobile phone to the personal number of a private ambulance operator (Lifeline);
3. Correspondence, including emails between the ambulance operator and Mr McClintock and
4. Records showing how much the HSE paid to Lifeline Ambulances in the past 5 years, including any payments made as a result of a High Court case in 2008.

On 22 May 2009, the HSE informed the Applicant that it was considering release of records in the public interest and thus was required to contact third parties who may be affected by release. The HSE in its decision of 24 June 2009 refused access to the records on the basis that they were exempt under sections 20(1) (a) of the FOI Act. Although it is not clear from that decision letter, it appears that records covered by part 1 of the request - the expenses- were released to the applicant. The decision made no reference to section 20(2) or to section 20(3) of the Act or to consideration of the public interest as required by section 8(2)(d). The Applicant applied for an internal review of the decision. In its internal review decision dated 7 July 2009 September 2008, the HSE affirmed the original decision stating that the information ''is currently part of an ongoing review process and release could possibly adversely impact on that review". Again, that decision did not address the public interest.

The Applicant applied to this Office, on 28 July 2009, for a review of the HSE's decision. In conducting this review, I have had regard to the submissions of the HSE, as well as those of the applicant and the third party whom the HSE contacted in the course of its decision making process, the contents of the records (copies of which have been provided), and the provisions of the FOI Acts. I have also had regard to the preliminary views, dated 7 October 2009, 13 January 2010 and 27 January 2010 and 29 January 2010 which Elizabeth Dolan, Senior Investigator of my Office, sent to the parties.

Conducted in accordance with section 34(2) of the FOI Act by the Information Commissioner, Emily O'Reilly.

Scope of Review and Preliminary Matters

The HSE said in a letter from its solicitors on 18 February 2010 that it no longer objects to release of the list of telephone calls at item 2 of the request. I understand that those records have since been sent to the applicant and, accordingly, I will not deal with them in this review. Furthermore, there are some references in the correspondence to information in the records which might identify patients. The applicant is not seeking such information and it is to be redacted from any records which fall to be released on foot of this decision.

HSE's handling of request and review

I must say that I found the handling of this case by the HSE to be unusually poor for reasons which are clear from the background and analysis in this decision. Given the high number of FOI requests received by the HSE, the fact that the FOI Act has applied to the health services since October 1998 and the widespread availability of training, guidance notes and decision making precedent, one would expect that its staff would by now be fully conversant with the fundamental provisions in the Act. I take the view that requesters and other potentially affected persons are entitled to FOI decisions that reflect the provisions of the Act in a way which will allow them to take a fully informed view on the decision. I would expect that designated decision makers would, at the very least, apply the FOI Act properly in their decision making and that internal reviewers, who are required to hold more senior positions, would rectify any obvious omissions in making a fresh decision. Further, I think it is reasonable to expect that, even if matters were not well handled at request and internal review stages within the HSE, my Office would receive, when requested, the necessary records and other information to enable it to carry out a thorough review as early as possible. Regrettably, this did not happen in this case. At no time have the delays and confusion in the handling of the case or in the provision of a complete set of the records been satisfactorily explained to me by the HSE although my Office invited it to provide reasons for what happened. Very little weight appears to have been given to the rights of the Requester/Applicant under the FOI Act.

My Office encountered misleading and incomplete responses to its efforts to clarify and examine the issues and the records under review. Although the HSE's submission of 30 November 2009 purported to present all of the material within the scope of the review, it later transpired that the records covered by item 4 of the request - the payments made- had been omitted from the material received in response to requests from my Office on several occasions. Some of the omitted records were furnished on 4 February 2010. However, on 11 February 2010 my Office served notice under section 37 (1) of the FOI Act on Professor Brendan Drumm, Head of the HSE, requiring him to furnish the outstanding record showing the amount paid to Lifeline as a result of the High Court case in 2008. The record, accompanied by a submission, was received from A&L Goodbody, solicitors on 18 February 2010. No reason was given for the previous failure to supply the necessary information to enable me to carry out this review.

Unfortunately, the evidence in this case leads me to conclude that the HSE's behaviour in relation to the request and the review had the effect of frustrating the operation of the FOI Act in relation to access to records and delaying my Office's review and investigation into whether or not the refusal of the records was justified. I intend to take this up further with the Head of the HSE and to consider whether an investigation under section 36 of the Act is the best mechanism to establish what happened in this case.

Submissions

.

Findings

Analysis and Findings

The underlying presumption of the FOI Act is that requests for access will be granted, subject only to necessary restrictions. I draw attention to 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 on the HSE the onus of showing, to my satisfaction, that the decision to refuse access to the records is justified in terms of the provisions of the FOI Act. I will, of course, also take account of the position of the third party (Lifeline) insofar as this is relevant.

 The involvement of third parties and section 29 of the FOI Act

Section 29 of the FOI requires formal notification of an affected third party only where the head of a public body is considering the release of confidential information, commercially sensitive information, or personal information in the public interest in accordance with section 26(3), 27(3), or 28(5), respectively. Lest there be any doubt about where the burden of proof lies in relation to justifying the withholding of the records in this case, I set out the HSE's treatment of the request vis a vis Lifeline:

• On 22 May 2009 the HSE decision maker wrote to Lifeline referring to section 29 of the FOI Act and indicating that she was considering whether to release in the public interest records affecting their interests. The information at issue was identified as commercial information supplied by Lifeline which, apparently, in the decision maker's view at that time, was exempt under section 27 of the Act;
• Lifeline's solicitors duly made submissions to the HSE objecting to release of the records;
• The decision maker refused access relying solely on section 20 of the FOI Act which protects records in certain circumstances where deliberative processes of public bodies are involved. She made no reference to the public interest, to Lifeline's interests, to commercial sensitivity or the exemptions to which section 29 might apply. Later, when the case came to my Office for review, the HSE claimed that sections 21, 26 and 27 applied although it had not notified the applicant that those provisions were relevant to the refusal of his request.

Since the decision to refuse was solely on grounds other than section 26, 27 or 28, the decision under review is not one to which section 29 applies because it cannot be said that, apart from section 29, the request would fall to be granted (section 29(1) refers). Therefore, while my Office invited submissions from Lifeline on the basis that its interests might possibly be affected by release of the records, this review is one in which the onus of justifying the refusal rests solely on the public body.

Section 20 - the deliberative process

The HSE's original decisions and its submission of 10 September 2009 claimed that section 20 of the FOI Act applied. It did not refer to this exemption in later submissions. Section 20(1) of the FOI Act provides as follows:

"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 have not found any material in the records which relates to the HSE's deliberative process or that of any other public body. Section 20(1) does not apply to the factual information nor to "a report of an investigation or analysis of the performance, efficiency or effectiveness of a public body in relation to its functions generally or a particular function..."[section 20(2)].

The exemption provided for at section 20(1) is not a mandatory exemption. In invoking a discretionary exemption, I expect that a public body will make a clear case in support of the need to rely on that particular exemption. 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 certain records will have a detrimental effect on the particular deliberative process in question. Even if I were to conclude that section 20(1) did apply to sections of the records which do not contain factual information or analysis of performance in relation to the ambulance service, I would have to consider the public interest test provided for at section 20(3).

Having regard to the above and to section 34(12)(b) of the FOI Act, I find that the HSE has failed to satisfy me that its refusal under section 20(1) of the Act was justified.

Section 21(1) - Prejudice to Investigations

The HSE, in submissions to my Office, relied on section 21(1)(a) of the FOI Act, which provides that a public body may refuse access to a record if it considers that access could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof.

In arriving at a decision to claim a section 21 exemption, a decision maker must, firstly, identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The test of whether the expectation is reasonable is not concerned with the question of probabilities or possibilities; it is concerned with whether or not the decision maker's expectation is reasonable.

It is appropriate here to refer to the Supreme Court judgment in Sheedy v Information Commissioner[2005] 2I.R.272 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". Thus, in the present context, I consider that the HSE must show some evidence of prejudice if its reliance on section 21(1)(a) is to be justified. Sections 21(1)(a) is also subject to a public interest test under section 21(2).

The HSE identified as the audit or investigation at issue a review commissioned by the Director of the National Hospital's Office which it says arose because of the number and complexity of queries received from April to June 2009 in connection with transportation of patients. It said that the review group was due to finalise its report in October 2009. However, A&L Goodbody's submission on behalf of the HSE on 18 February 2010 indicated that the matter had not yet been finalised.

It seems to me that at the time the HSE received and processed the Sunday Times FOI request, there may have been no audit or review of the ambulance service in existence. This raises the question as to whether the refusal of accords on this basis was legitimate under the FOI Act since it could hardly have been the intention of the legislature that actions giving grounds for exemption would be taken after a request for records had been received. However, given that I am carrying out a de novo review of the matter, I can take into account the circumstances prevailing at this time and will therefore examine whether it is reasonable to expect that any harm to the effectiveness and procedures of the HSE's investigation of the ambulance service will flow from release of the records.

The submissions of the HSE, including those from its solicitors, do not identify any particular harm other than the assertion in relation to the records covered by item 3 of the request that ''completion of the review could be prejudiced by the disclosure of this category of records". The solicitors also say that, pending completion of the report, no decision can be taken on whether such records could be released. I find this line of argument puzzling as it appears to suggest that, no matter how long the HSE internal investigation remains unfinished, the applicant has effectively no right of access or even a right to a definite decision regarding the records in the meantime. Clearly, that is not what was envisaged by the FOI Act. I note that the HSE submissions make no specific reference to the content of individual records covered by the request in the context of the effect of their release on the investigation. I consider that any request must be dealt with on its merits in light of the contents of each particular record and the relevant facts and circumstances of the case.

Having examined the content of the records, I am not satisfied that their disclosure would prejudice the effectiveness of the investigation or audit or any of the methods used to carry out such investigation. The HSE provided me with a copy of the terms of reference of the investigation underway. I note that it covers procurement of ambulances, implementation of the framework contract for provision of private ambulances, review of complaints since 2007 and other related matters. While the correspondence in the records may be relevant to some of the issues, I am not satisfied that any harm linked to the release of this particular material has been identified other than a general assertion by the HSE that ''prejudice'' would occur. Moreover, I have no reason to believe that methods other than routine methods of investigation were employed, such as reviewing correspondence and payments and interviewing key staff and contractors. As a general matter, I do not accept that such routine methods of investigation could reasonably be expected to be prejudiced by the release of the records in this case. According to the HSE, the information gathering part of the review has been completed. The HSE has not made the case that its staff or others involved would not cooperate with the investigation if the records at issue were to be released under FOI.

I note also that at no time did the HSE carry out, as required, the necessary public interest balancing test required under section 21(3) of the Act nor is this addressed in the recent submission from its solicitors. .

Having regard to the above and to the provisions of section 34(12) of the Act, I find that the HSE has not justified its refusal of access under section 21(1)(a). Accordingly, it is not necessary for me to determine whether the public interest in granting the request outweighs the public interest in refusing access to the records.

Section 27(1): Commercially sensitive information

Both the HSE and Lifeline claimed in correspondence that the records are commercially sensitive and that the exemption at section 27(1) applies to the withheld parts. Section 27(1) provides as follows: "... 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.

The company said, when consulted by the HSE, that release of the information might give advantages to competing parties in the ongoing procurement process. The HSE argued that the correspondence on service delivery and standards could be commercially sensitive in that the experience of the ambulance providers could enable them to extract commercially sensitive or valuable information "undetectable to less experienced personnel". The HSE solicitors do not appear to be arguing that the commercial sensitivity exemption would apply to the correspondence at item 3 of the request but that the records of payments at item 4 qualified for the exemption. They submitted that disclosure of invoices and pricing structure would impact on competitiveness within the market to the detriment of the HSE in any future tender competitors.

The nature of the records forwarded to me by HSE do not disclose any invoices, unit prices or pricing structure nor did the FOI request seek such a level of detail. The records have been prepared by the HSE in tabular form showing the total paid to Lifeline for each year in respect of each HSE area. It seems to me that such historic payments, in the absence of a breakdown of such variables as number of trips/patients, mileage and staffing details disclose little of any use to competitors. The figures withheld relate to monies paid by the HSE to a contractor who was, presumably, awarded the contract after a tender process. I cannot see how the competitive position of the company would be damaged by disclosure of the amount of money paid to it in respect of services provided. In relation to the non-financial records, neither the HSE nor the third party have linked the specific content of the emails etc. to any harm such as material financial loss or prejudice to the competitive position of the company. Even taking account of any current or proposed competitive tendering, I fail to see how release of information of the type I have examined could reasonably be expected to result in material financial loss for Lifeline or how it could prejudice the competitive position of that company.

My finding is that the HSE has not justified its claim that the records at issue are exempt under section 27(1) of the FOI Act. I find that, under section 34(12)(b) the HSE has failed to satisfy me that its refusal is justified.

The public interest

Even if the records did disclose matter which would qualify for exemption under section 27(1)(b) as a result of any damage to the financial or competitive position of Lifeline, I would have to consider the public interest under section 27(3). The HSE and its solicitors seem to have overlooked this important provision although its existence was brought to their attention by my Office in its preliminary views letter.

I consider that the openness and accountability of a public body in the expenditure of public monies represents a very strong public interest argument in favour of release. I am not convinced that the contract which ambulance providers have with the HSE should be any more sensitive than that of the great majority of successful tenderers to whom contracts are awarded by public bodies. The existing systems of audit and scrutiny provide certain safeguards but this is not an argument against further such safeguards, including public disclosure of the details of monies paid.

The public interest factors in favour of disclosure have to be balanced against the public interest served by non-disclosure. The main consideration on this side is the public interest in enabling businesses to operate without undue difficulty or unfair competition. The extent of any harm which might result from disclosure and the likelihood of its occurrence are relevant factors here. There is a legitimate public interest in persons being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result; it is this public interest which section 27(1) seeks to protect. However, there is also a very strong public interest in government being open and accountable and the FOI Act, both in its Long Title and in individual provisions, recognises such wider public interests.

As stated in previous decisions by this Office, knowledge by future tenderer of historical prices does not automatically provide any advantage given the inability to predict the behaviour of competitors. In balancing the public interest, a prejudice which is no more than a mere possibility has to carry a great deal less weight than a prejudice which is more likely to occur. In the circumstances, I find that the advantages in terms of openness and accountability of disclosing the withheld information outweigh any possible harm and I believe that the public interest in this case is better served by release. In this regard, I note that records relating to services provided by contractors to public bodies are included within the FOI regime (section 6(9)) and that, under section 26(2) the provisions on exemptions for information obtained in confidence do not generally apply to records prepared by persons providing a service to a public body under a contract for services.

As the former Commissioner put it in Case Nos. 98049, 98056 and 98057 [Henry Ford & Sons Ltd, Nissan Ireland and Motor Distributors Ltd and the Office of Public Works]

"Such openness is a significant aid to ensuring effective oversight of public expenditure, to ensuring the public obtains value for money, to preventing fraud and corruption and to preventing the waste or misuse of public funds.."

Motor Distributors Limited has argued that there are existing mechanisms to ensure accountability and that these are adequate. It is not for me to comment on the adequacy of such mechanisms. I do not accept that the existence of current safeguards in relation to public expenditure means that there is no public interest in creating further safeguards. The very existence of secrecy carries with it the scope for abuse. In contrast, openness in relation to public expenditure is an important additional safeguard against fraud, waste and misuse of funds. I consider that the public interest in openness about public expenditure is of very great significance."

Section 26: Information given in confidence

Although the HSE did not rely on section 26 in its decisions or in its submissions in support of its refusal of the request, its solicitors recently made the claim that the record showing the amount paid to Lifeline arising from the 2008 High Court case is exempt under section 26(1)(b) of the FOI Act which states:

"26 (1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if ... (b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law."

I find it strange that neither the HSE's original decision and the internal review carried out by a person more senior than the original decision maker made any mention of the confidentiality provision now relied upon. Indeed, as discussed above, it appears that the decision maker's initial view was that the records, although exempt on commercial sensitivity grounds, could be considered for release in the public interest subject only to consideration of the views of the third party as to where the balance of the public interest lay.

In its submission to the HSE, Lifeline said that the disclosure of the terms of the settlement entered into arising from the proceedings in 2008 would be in breach of the confidentiality terms of that settlement and ''could expose both the HSE and Lifeline to litigation and dispute. This is contrary to the public interest." My Office wrote to Lifeline on 26 January 2010 and 18 February 2010 inviting it to comment on the Senior Investigator's preliminary view that the records fell to be released under the FOI Act and specifically asking the company to address the issue of a possible breach of confidence. No response was received to those letters and the company did not contact the Senior Investigator as invited.

It is important to note here that only that part of the record showing the sum of money paid in settlement by the HSE is at issue and that the remainder of the record i.e. the other terms of the settlement agreement is outside of the scope of this review since it was not requested under FOI.

Section 26(2)

In considering section 26(1) of the FOI Act, it is first necessary to look at whether that sub-section is dis-applied by section 26(2) which provides:

"(2) Subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, a public body or a person who is providing a service for a public body under a contract for services) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services."

Two elements must be present if section 26(2) is to dis-apply section 26(1); one has to do with the source of the record at issue and the other has to do with the identity of the person in respect of whom a duty of confidence is owed (and where disclosure of the record would constitute a breach of a duty of confidence). In other words, section 26(1)(b) cannot apply to a record where:

1. the record has been prepared by a head, director, or member of staff of a public body, or a person who is providing a service for a public body under a contract for services; and
2. the preparation has been effected in the course of the performance by that person of his or her functions;
3. UNLESS disclosure would constitute a breach of a duty of confidence owed to a person other than a public body or head or director or member of staff of a public body or a person who is providing or provided a service for a public body under a contract for services.

In this case, it appears that the record (the part of the settlement agreement) was "prepared" or drawn up by the HSE's legal advisors who would have been acting on its behalf under a contract for services. I note that the agreement involves a matter relating to the scope of the obligations of the HSE and Lifeline under the contract for services and that the work involved in settling the case would have been carried out in the course of the performance by the relevant staff or contractors of their functions. The agreement could also be viewed as having been jointly prepared on behalf of the HSE and Lifeline. However, it is not entirely clear as to whom any duty of confidence was intended to be owed. In any event, it is not in dispute that Lifeline has a contract for services with the HSE and, judging by the payments disclosed in the other records, it has had such a contract at least since 2005.

In the High Court in The Health Service Executive and the Information Commissioner and BK - [2008] IEHC 298, Mr Justice McMahon found that breach of a duty of confidence could not be claimed where the confider of the information was a person who could not have an agreement of confidentiality with the public body to whom information was being given. I do not accept that the HSE owes a duty of confidence to Lifeline who are providing a service to the public body under a contract for services. No other third party to whom a duty of confidence night be owed has been identified in this case.

In short, it seems that, in the present case, any duty of confidence which may be owed by the HSE would be owed to one of its own contractors. For these reasons, I am satisfied that section 26(2) applies in the case of the record showing the settlement payment. I find that section 26(1)(b) cannot apply to this record.

I wish to include here a general comment on the matter of confidentiality agreements. In my decision in Case No. 000528 - John Burns of the Sunday Times and the North Eastern Health Board - published on www.oic.gov.ie - I set out my views on confidentiality agreements in an era of FOI and expressed the belief that the enactment of the FOI Act has a bearing on the capacity of public bodies to enter into legally binding confidentiality agreements which are now subject to its implied terms. I stress that I have not said that FOI renders all such agreements inoperable, As I have previously found, section 26 of the FOI Act is not intended to protect the interests of public bodies. The language within section 26 itself, especially in sub-section (2), supports the view that the protection of the section is directed at entities other than public bodies.

Given the importance of openness and accountability in the public service and the fact that, at the time these records were requested, the FOI Act had been in force for eleven years, I am satisfied that the HSE and Lifeline were well aware of the implications of the Act. However, I do not believe that the confidentiality clause in this case was inserted with the deliberate purpose of circumventing the FOI Act. I am more inclined to take it that it was inserted as a standard pro forma clause commonly used in the type of out-of-court settlement at issue here.

Decision

Having carried out a review under section 34(2) of the FOI Act , I hereby annul the decision of the HSE in this case. I direct it to release the records (part of record in the case of the High Court settlement) identified as coming within the scope of Items 3 and 4 described above subject to deletion of any identifying patient information.

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.

 Period within which effect is to be given to the decision

This is a case in which I consider it appropriate to fix ,under section 34(13) of the FOI Act, the period of time within which effect shall be given to the decision. I specify that, subject to sections 42 and 44 of the Act, the records shall be released to the Applicant within 3 working days of the expiration of the time for the bringing of an appeal to the High Court.

Emily O'Reilly

Information Commissioner

12 March 2010