The Senior Investigator affirmed the decision of the HSE. She found that, on balance, the public interest is better served by granting the requester access to the records.

Case Summary

Appeal by the person to whom the information relates against the decision of the HSE to grant a request for access to records (relating to reports compiled in relation to complaints made against a nursing home) on the basis that, while the records qualify for exemption under the FOI Act, the public interest would, on balance, be better served by granting the requested access. This was a request to which section 29 of the FOI Act applies. 

Date of Decision: 11.06.2010

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

Background:

The application for review to the Commissioner was received on 17 December 2009. The Applicant is the Person-in-Charge at the nursing home. The application was made in accordance with section 29 of the FOI Act which provides for application for review direct to the Commissioner by a person where access to information relating to them, which is covered by one or more of the exemptions contained in sections 26, 27 or 28, is being granted to a requester in the public interest. The HSE decision to grant access to the records containing information relating to the Applicant followed a request under the FOI Act (12 August 2009) for "copies of all reports compiled between January 1, 2005 and June 1, 2009 in relation to complaints made against the nursing home.

On 9 October 2009, the HSE advised the Applicant that the FOI request had been received, that the granting of access to the requested HSE reports was being considered and that, in accordance with the provisions of section 29 of the FOI Act, it was open to the Applicant to make submissions to the HSE in that regard. The Applicant made a responding 14 point submission which was received in the HSE on 5 November 2009.

Section 29 is the section of the FOI Act which is applied in cases where the starting position is that the public body has decided that certain records are protected by one of three exemptions (section 26 relating to information that is confidential; section 27 relating to commercially sensitive information and section 28 relating to personal information) but that the public interest in granting the requested access to the records concerned outweighs the public interest in refusing such access.

Before reaching a decision on whether or not the exemption can be set aside in the public interest, the public body must notify the person(s) to whom the information relates and it must take account of any submissions made by them. In this case, having considered the Applicant's submissions, the HSE decided to grant the access requested.

The HSE decision did not specify which of the three exemptions (sections 26, 27 or 28) it had applied and did not refer to the public interest in its correspondence with the Applicant regarding this matter. In correspondence with this Office in the course of the review, the HSE clarified that it applied the section 27(1) exemption before it considered the public interest as it is obliged to do under section 27(3) of the FOI Act.

In conducting this review I have taken account of the submissions of the Applicant and of the HSE together with the records at issue and the provisions of the FOI Act. The requester did not make a submission on the review.

On 30 November 2009, the HSE acknowledged that submission and advised the Applicant that it had decided to grant the requester access to the records. The HSE further advised the Applicant of her right to apply directly to the Commissioner for a review of that decision and that a stay of two weeks would attach to the decision to allow the Applicant to avail of her right to apply to the Commissioner for review.

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 the Review

The review in this case is concerned only with whether the Applicant has shown that the

decision of the HSE to grant access to records in the public interest is not justified.

The records to which access has been granted by the HSE

The records to which access has been granted are six reports which were drawn up by the HSE in relation to complaints regarding the nursing home between 28 August 2007 and 22 May 2009, viz.

investigation report dated 28 August 2007 (report no. 27) in response to a complaint which arose from a routine inspection of the nursing home carried out on 28 June 2007

investigation report dated 8 January 2009 (report no. 28) in response to an anonymous complaint logged on 27 March 2007

report dated 8 January 2009 (report no. 30) relating to a visit to a particular patient of the nursing home on 19 November 2007

investigation report dated 12 March 2008 (report no. 32) in response to a complaint which was received on 31 January 2008

investigation report dated 14 March 2008 (report no. 32) in response to complaints which were received on 31 January, 12 February and 18 February 2008

investigation report dated 22 May 2009 (report no. 48) in response to a complaint made on 12 February 2009

investigation report dated 30 March 2009 (report no. 49) in response to a telephone complaint which was received on 25 March 2009.

Elements of the reports (names of individual residents and staff of the nursing home) and a ten line section of report no. 32 have been redacted from the records to which access has been granted by the HSE in its decision dated 30 November 2009.

Submissions

.

Findings

Preliminary Matters

As noted above, the HSE has clarified the position on the section 27 exemption in the course of the review. However, it is of concern that it did not advert at all to the relevant exemption(s) of the FOI Act which it considered to apply to the records in question in its correspondence with the Applicant. Contrary to the provisions of the FOI Act, the HSE also neglected to address the public interest provisions of those exemptions which must always be considered in dealing with the exemptions at sections 26(1)(a), 27(1) or 28(1) of the Act. This is a significant omission on the part of the HSE and is a defect in the decision making process in this particular case. The FOI Act confers a right on requesters and on any third parties who may be affected by the granting of access to information in the public interest to be given FOI decisions which convey the full position on the relevant exemptions of the FOI Act in a way which will allow the requester and any third parties involved reach a fully informed view of the decision.

Despite the defect in the decision, the section 29 procedures apply where the decision is that the request should be granted in the public interest although the records are exempt under section 27(1). It appears that this is the situation in regard to the HSE decision and that the review should be conducted on this basis.

Section 34(12)(a) provides that in a review of a decision on a request to which section 29 applies:

"(a) a decision to grant a request to which section 29 applies shall be presumed to have been justified unless the person concerned to whom subsection (2) of that section applies shows to the satisfaction of the Commissioner that the decision was not justified".

Section 34(12)(a) therefore places the onus on the Applicant, as the party objecting to the granting of access, to show to the Commissioner's satisfaction that the decision to grant access to the records was not justified. The Long Title to the FOI Act declares that its purpose is "to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies . . . " . The underlying presumption of the FOI Act is that access to records will be granted subject only to the specified exemptions - some of which have a public interest override, e.g. section 27(1).

This review is concerned with the question of whether the public interest would, on balance, be better served by granting than by refusing the request. This review is not concerned with the administrative procedures and processes by which the records requested came into existence; neither will I make findings on the disagreement between the Applicant and the HSE in relation to the content of the records.

Finally, while it forms no part of my binding decision but because it has been raised by the Applicant, it is important to be clear on the question of information released under the FOI Act. Section 45(2) of the FOI Act provides that civil or criminal proceedings shall not lie in any court against:

"(i) the State,

(ii) a public body,

(iii) a head,

(iv) a director or member of the staff of a public body, or

(v) a person providing a service for a public body under a contract for services with the body"

in the matter of granting a request for access to information under the FOI Act. It would appear that the FOI Act confers no such privilege or immunity in the event of further publication of such records by the requester or by any third party.

The Exemption(s) Applied

This Office queried the HSE as to which exemption it relied on. It indicated that section 27 (commercially sensitive information) was the relevant exemption given that the information in the records relating to the Applicant's business could be commercially sensitive.

The Public Interest Balancing Test

Section 27(3) 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 .....".

The public interest balancing test, as provided for at section 27(3), means that the public interest factors for and against the granting of access to the records must be identified and evaluated. I have had regard to the Applicant's contentions regarding the implications of granting access. In summary form, these are that:

1. Y Limited which is the proprietor of the nursing home in question ought to have been afforded a separate and individual right of making a submission in relation to the decision to grant access to the records as its legal interests are different from those of the Applicant as the Person in Charge of the nursing home
2. the records contain statements which are false and inaccurate and are highly defamatory of the Applicant personally and of Y Limited
3. any "publication" of these defamatory statements will expose the HSE to liability for substantial damages in defamation
4. the records were negligently compiled and any "publication" of these records will expose the HSE to liability for substantial damages in negligent misstatement
5. the HSE has forwarded a report to the Fitness to Practice Committee of An Bord Altranais , that proceedings are in being and that the "publication" of these records is likely to be highly prejudicial to the outcome of that hearing
6. the "publication" of records could defeat the statutory entitlement of a nurse under the Nurses Act not to have unproven allegations published
7. the names of the complainants would be put into the public domain (by the Applicant) in order to defend her good name and reputation by inviting the public to assess the credibility of the complainants; that this would be a breach of an undertaking which the Applicant says was given by the HSE that the complaints would be dealt with on a confidential basis
8. all information provided by the Applicant and the staff of the nursing home was provided to the HSE in confidence and that "publication" would be a breach of that duty of confidentiality
9. litigation is being contemplated by Y Limited and by the Applicant and that the records which are the subject of the FOI request are central to that proposed litigation and that "publication" of the records would be likely to be prejudicial to that proposed litigation
10. the identities of the persons who made the complaints were not revealed to the Applicant "until after the main report" was completed and that the Applicant believed that this was "done deliberately by the HSE in order to prevent the lack of credibility of the complainants" being challenged by the Applicant
11. the HSE did not tell the Applicant what the allegations were before completing the report
12. the allegations, findings and other statements in the reports are "tantamount to findings by the relevant prosecuting authority that I committed offences under the relevant nursing homes legislation despite the fact that I have never been found guilty of any such offence and that no such prosecution has ever been commenced."
13. "publication" of the findings in these reports represents "a clear and obvious attempt by the HSE to defeat the intent of the (nursing homes) legislation and deprive the nursing home of these procedural and legal rights by reaching and publishing findings outside those procedures
14. the selection of items for exclusion from "publication" have the effect of focusing the complaints on the Applicant personally and "creating the false impression that the complaints are more reasonable and credible" than in fact they are and that, therefore "the publication of these records in the proposed form would be unfair and prejudicial" to the Applicant
15. a request under the Data Protection Acts with a view to having "many errors" in the relevant records corrected has not been complied with by the HSE; "publication" is prejudicial to the Applicant's rights under the Data Protection Acts as well as her rights to have records "imputing the commission of offences" preserved from "publication"
16. the Applicant does not have confidence in the HSE to be impartial in relation to the nursing homes in the area surrounding the nursing home which are owned and operated by the HSE and which are direct competitors of the nursing home
17. the complainants were 'neither patients or patients with whom contracts of care were signed and therefore the HSE had no legal authority to investigate these complaints and therefore the information was obtained unlawfully and by trespass and the investigations were conducted unlawfully and ultra vires the Nursing Homes Act.'

Additionally, the Applicant's submissions to this Office included reference to the motivation behind the complaints made to the HSE regarding the nursing home. The Applicant questioned the methodology by which the HSE had handled the complaints received. The Applicant indicated that she intended taking legal proceedings in relation to the HSE reports in question. The Applicant also provided a submission relating to a former patient of the nursing home and forwarded statements from two current employees of the nursing home.

It is clear that the Applicant has many criticisms of the reports and of procedures employed by the HSE in investigating the complaints and producing the reports. It is not within my remit to deal with those contentions which are mainly concerned with the background to the creation of the records rather than the question of access to records. In relation to the interests of other parties, this Office advised the Applicant that it was a matter for her to furnish submissions to the Commissioner and that, if she believed it to be relevant to her application, it was open to her to include submissions from other parties in support of her own submissions.

In examining where the balance of the public interest lies, it is important to bear in mind that the extent to which the Applicant agrees or disagrees with the content of the records or the process by which they were created by the HSE are not factors which can be regarded as public interest factors either way in this review. The reports in question all followed investigations which were carried out within the regulatory structure of the Nursing Homes (Care and Welfare) Regulations, 1993 which, until 1 July 2009, was the legal responsibility of the HSE and, prior to January 2005, the individual health boards. As such, the reports were carried out within a statutory framework and I have established that correspondence from the HSE to the Applicant at the times of the individual complaints would have afforded her the opportunity to raise issues in advance of the finalisation of investigation reports. The HSE has advised that the following correspondence issued to the Applicant in relation to the investigation reports:

Report No. 27 - Investigation report dated 28 August 2007

This report followed a complaint which arose from a routine inspection of the nursing home carried out on 28 June 2007. The HSE wrote to the nursing home on 6 June 2007 to advise of the complaint. The Investigation Team carried out an investigation which upheld the complaint. According to the HSE, the nursing home did not formally reply to it.

An inspection report relating to an inspection carried out on 28 June 2007 is published on the website of the HSE.

Report No. 28 - Investigation report dated 8 January 2009

This report followed an anonymous complaint logged on 27 March 2007. The HSE did not write to the nursing home but brought the matter complained of to the attention of the Inspection Team to be investigated during routine inspection on 28 June 2007. The team raised the issues during the inspection and requested certain information from the nursing home. According to the HSE, no formal reply was received from the nursing home.

The inspection report closest to this report is also that relating to an inspection carried out on 28 June 2007 which is published on the website of the HSE.

Report No. 30 - Investigation report dated 8 January 2009

This report relates to a visit by the Assistant Director of Public Health Nursing to a particular patient of the nursing home on 19 November 2007. The HSE wrote to the nursing home on 27 November 2007, an investigation was carried out and the nursing home replied in writing on 8 January 2008.

An inspection report relating to an inspection carried out on 30 January 2008 is published on the website of the HSE.

Combined Report No. 32 - Investigation reports dated 12 and 14 March 2008

This report relates to complaints received on 31 January, 12 February and 18 February 2008. The HSE wrote to the nursing home on two separate occasions outlining the nature of the complaints received and gave seven days to respond. On each occasion, the HSE also advised that it could extend the time for reply if required. A request for an extension was received from the nursing home and a further 14 days were given to respond to the complaints. According to the HSE, no further response other than queries from the nursing home was received.

An inspection report relating to an inspection carried out on 7 May 2008 is published on the website of the HSE.

Report No. 48 - Investigation report dated 22 May 2009

This report relates to a complaint made on 12 February 2009. The HSE wrote to the nursing home and enclosed a copy of the complaint. A letter was received from the nursing home but, according to the HSE, it was not a reply to the concerns raised.

An inspection report relating to an inspection carried out on 22 January 2009 is published on the website of the HSE.

Report No. 49 - Investigation report dated 30 March 2009

This report relates to a telephone complaint which was received on 25 March 2009. The HSE wrote to the nursing home outlining its concern and advised that it would investigate the matter. According to the HSE, a formal reply was not received from the nursing home.

The inspection report closest to this report is that already listed in relation to report no. 48, relating to an inspection carried out on 22 January 2009 which is published on the website of the HSE.

Apart from the published inspection reports which correspond closely in time to the complaint investigation reports which are the subject of this review, there are two further published reports - 4 December 2006 and 26 November 2008 - dealing with a number of issues at the nursing home.

Overall, it is evident that matters of the nursing home have been the subject of much correspondence between the HSE and the Applicant over the years and over a greater period than that covered by the FOI request. Clearly, the investigation reports are not documents which would be likely to be jointly agreed between any nursing home and the HSE and, while I acknowledge that the published reports are investigation reports, rather than reports following investigation of complaints, they are very similar in terms of subject matter, tone and content.

I note also that, on 1 July 2009 the Health Information and Quality Authority (HIQA) assumed legal responsibility for the registration and inspection of residential care services for older people in the public, private and voluntary sectors. HIQA has published on its website a report of an inspection of the nursing home on 8 and 9 September 2009.

The Applicant should also be reassured that the names of individual residents and some staff of the nursing home are redacted from the investigation reports to which access has been granted by the HSE. I see no public interest in the release of such personal information. The one exception concerns the names of any nurses employed in the nursing home. I understand that the register of enrolled nurses maintained by An Bord Altranais - the statutory regulatory body for nurses in Ireland - is, in effect, a public register and that the identification of a person as a registered nurse, along with the professional registration (PIN) number, does not constitute personal information.

The public interest factors identified as favouring the granting of access to the records in question are:

• the public interest in the availability of as much information as possible on the running of all nursing homes so as to inform the selection of nursing homes for individuals
• the public interest in members of the public having information relating to the welfare and well-being of older people entrusted to the care of nursing homes
• 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 relating to nursing homes
• the public interest in the public being satisfied that nursing homes operated within the standards prescribed by law, in particular the Nursing Homes (Care and Welfare) Regulations 1993 which the HSE was required to enforce during the period covered by the request (1 January 2005 to 1 June 2009)
• the public interest in knowing how the HSE investigated and reported on complaints made to it in relation to specific nursing homes up to 30 June 2009
• the public interest in individuals being able to understand the reasons for courses of action taken by the HSE and all other public bodies to the greatest extent possible
• the public interest in members of the public knowing how the HSE and all public bodies perform their regulatory functions and being able to form an opinion as to whether those functions are being properly discharged.

The public interest factors which have been considered in favour of refusing access to the records in question are:

• the public interest in supporting an environment conducive to the conduct of business including the operation of private nursing homes
• the public interest in members of the business community such as nursing home proprietors/operators being able to communicate in confidence with public bodies such as the HSE without fear of disclosure in relation to sensitive matters
• the public interest in ensuring the flow of information to public bodies (including the HSE) is not impeded or discouraged.

In her decision in Case No. 020533 - Mr. X and the South Eastern Health Board- the Commissioner commented as follows in relation to the public interest and information about nursing homes:

"I consider that there is a significant public interest in information about private nursing homes being available to the public. There are two particular reasons for taking this view:

• The first is that the Exchequer, via the health boards, pays out substantial sums to such homes in the form of subventions to patients resident in nursing homes. Ensuring accountability in respect of this funding constitutes a very significant public interest.
• The second reason is that the public has a very strong interest in knowing that such homes operate within the standards prescribed by law - in the Health (NursingHomes) Act, 1990 along with related regulations - and which health boards, on behalf of the public, are required to enforce.

In my view, there is a significant public interest in the public knowing how health boards carry out nursing home inspections in individual cases and that the regulatory functions assigned to the boards achieve the purpose of the relevant legislation. Indeed, I take the view that in the normal course reports of health board inspections of private nursing homes should be available as a matter of routine, subject only to the deletion of personal information and, occasionally, the protection of confidentiality in relation to third parties. There is an overriding public interest in ensuring that the health, security and welfare of elderly and vulnerable members of society is seen to be protected by the enforcement by health boards of the relevant legislation ....

I appreciate that there is a public interest in supporting an environment conducive to the conduct of business, including the operation of private nursing homes. However, in terms of balancing the competing public interests at issue here, I find that the advantages in terms of openness and accountability of disclosing the information in the records in question ... outweigh any possible harm to the Home and that the public interest is better served by the release of these records."

I agree with and am happy to adopt the above analysis as relevant to the current case. On balance, I find that the greater public interest, in terms of openness, transparency and accountability, lies in granting access to the information in the records as requested.

Decision

Having carried out a review under Section 34(2) of the FOI Act, I hereby affirm the decision of the HSE to the extent that it has decided that access should be granted in the public interest. In affirming the HSE's decision, I do so on the basis that access should be granted to the information in the records as covered by the HSE's decision of 30 June 2009 and subject only to the redaction of the names of residents, certain staff members, complainants and other third parties all of which constitutes the personal information of those parties. A schedule is attached for clarity in this regard.

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

11 June 2010