Case 100184

The Senior Investigator found that HIQA was justified under section 23(1)(a)(i) and section 23(1)(b) in its decision to refuse the request. She affirmed the decision of HIQA.

Case Summary

Whether HIQA was justified in its decision (in reliance on section 23 of the FOI Act) to refuse access to records containing information relating to Z Nursing Home as sought in a request under section 7 of the FOI Act.

Date of Decision: 30.12.2010

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

Background:

On 24 May 2010 HIQA received an FOI request for access to copies of all reports made to HIQA concerning Z Nursing Home ("the nursing home").

On 18 June 2010 HIQA issued a decision on the FOI request which identified five records totalling 10 pages as coming within the scope of the request; the requested access was refused for the reason that the law enforcement and public safety exemption at section 23(1)(b) of the FOI Act applied.

On 8 July 2010 HIQA received an application for internal review of its decision on the FOI request.

On 16 July 2010 HIQA issued a decision following internal review; the original decision was affirmed with a variation to the extent that refusal of access was grounded in sections 23(1)(a) and 23(1)(b) of the FOI Act.

On 6 August 2010 the Commissioner received an application from the Applicants for a review of the HIQA decision.

On 6 October 2010, Marie O'Brien, Investigator, issued her preliminary views on the review to the Applicants which concluded with the view that the decision in the case was justified. In response, the Applicants advised that their position had not changed and asked that a formal, binding decision be made. Therefore, the review is being brought to a conclusion with a formal binding decision.

In the course of the review, account has been taken of the following:

• correspondence between the Applicants and this Office, including the preliminary views letter dated 6 October 2010
• correspondence between HIQA and this Office
• the FOI Act
• the content of the records within the scope of the request

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, 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 decision of HIQA to refuse access to the Applicants to five records consisting of 10 pages, containing information given to HIQA in relation to the nursing home. The records which I have examined disclose concerns expressed to HIQA about the nursing home.

Submissions

.

Findings

Preliminary Matter

Section 34(12)(b) of the FOI Act, which deals with review by the Commissioner, provides that the HIQA decision to refuse to grant the Applicants' request for access to records shall be presumed not to have been justified until HIQA shows to the satisfaction of the Commissioner that the decision was justified.

Section 23

HIQA assumed legal responsibility for the registration and inspection of residential care services for older people in the public, private and voluntary sectors on 1 July 2009. HIQA's powers are derived from the Health Act 2007. HIQA has justified its decision to the Commissioner on the grounds that the exemption at sections 23 of the FOI Act (Law Enforcement and Public Safety) applies to the records in question. HIQA has identified subsections (1)(a)(i) and (1)(b) as the basis for its decision. In its correspondence with this Office, HIQA has also cited section 26 of the FOI Act (Information given in Confidence) in support of the decision to refuse access. However, for the purposes of this decision, it will not be necessary to consider the application of section 26 unless the section 23 exemption claim is not upheld.

Section 23(1)(a)(i) of the FOI Act provides for the refusal of access to a record where such access could, in the opinion of the head, reasonably be expected to:

"(a) prejudice or impair

(i) the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid."

Although the FOI Act requires that I take care not to disclose the contents of an exempt record, I can say that it is reasonable to conclude on the basis of the records' content that what is at issue here is the protection of an important source or sources of information which would be of assistance to the Chief Inspector in his or her statutory duties. I am satisfied that HIQA has applied the provisions of section 23(1)(a)(i) correctly in this instance and I find accordingly.

Section 23(1)(b) of the FOI Act provides that access to a record may be refused where, in the opinion of the head, its disclosure could reasonably be expected to:

"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,".

The records to which access is sought by the Applicants either include the identity of the person or persons who may have given information to HIQA or contain sufficient detail to allow their identity to be deduced in relation to the enforcement or administration of the Health Act 2007. This satisfies the first requirement of section 23(1)(b) conclusively and I find accordingly.

The second requirement of section 23(1)(b) is whether the information in the records in question was given in confidence. It is clear, given its statutory functions and obligations, that HIQA must have access to information from as many sources as possible in driving quality and safety in Ireland's health and social care services through setting and monitoring standards. HIQA has advised this Office that the functions of the Chief Inspector, as provided for at section 41(1)(c) of the Health Act 2007, are assisted by information provided by members of the public. The taking of concerns from members of the public also supports the achievement of the overall objectives of HIQA as provided for at section 8 of the Health Act 2007. I believe that the information given and the circumstances of its giving had the necessary quality of confidence and that it was treated by HIQA as having been received in confidence. In the absence of such an understanding of confidence, it is likely that the flow of information to HIQA would be limited and that persons would be reluctant to raise issues or make any representations on behalf of the residents of nursing homes who, by and large, are significantly less able to represent themselves than persons living in the community at large. Accordingly, I find that the second requirement of section 23(1)(b) has been met in the circumstances of this case.

The third requirement of the exemption at section 23(1)(b) refers to the requirement that the information concerned would relate to the enforcement or administration of the civil law. HIQA has advised this Office that the records concern the performance of the Chief Inspector, one of whose functions is under section 41(1)(c) of the Health Act 2007 to register and inspect designated centres to ensure compliance with the regulations and standards. According to HIQA, complaints and information (positive or negative) from the public provide a very important source for the inspectorate in performing its statutory functions. Part 10 of the Health Act 2007 creates specific offences in relation to breaches of provisions of the regulations regarding centres for older people and the Chief Inspector has power to prosecute alleged offences. Therefore, I am satisfied that the third requirement for the exemption is met and I find accordingly.

The Public Interest

Section 23(3) of the FOI Act provides that, where exemption of records containing information concerning "the performance of the functions of a public body whose functions include functions relating to the enforcement of law"or "the merits or otherwise or the success or otherwise of any programme, scheme or policy of a public body for preventing, detecting or investigating contraventions of the law". The records at issue do not contain such information and, accordingly, I am satisfied that section 23(3) does not apply and that, therefore, the section 23(1) exemption stands. I find accordingly.

HIQA has stated that access to the records concerned would be likely to prejudice or impair the prevention, detection or investigation of offences under the Health Act 2007. HIQA has explained to this Office that the Health Act 2007 (Part 10) creates specific offences in relation to its and that section 80 of that Act empowers the Chief Inspector of Social Services (Chief Inspector), to bring and prosecute summary proceedings for an offence under that Act. Consequently, any information concerning a nursing home which would be brought to the attention of HIQA and/or the Chief Inspector would, potentially, fall within the terms of section 23(a)(1). HIQA is of the opinion the granting of access to such records would be likely to prejudice or impair the prevention, detection or investigation of offences under the Health Act 2007 and the apprehension or prosecution of such offenders.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of HIQA to refuse the request by reference to section 23 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 the notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan

Senior Investigator

30 December 2010