Whether the HSE was justified in refusing the applicant's request for access to a report by an external reviewer on a complaint made by the applicant concerning services for her son where the report admittedly was prepared without due regard for the requirements of natural justice and fair procedures.

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

Background

In June 2010, the applicant made a formal complaint to the HSE concerning services for her son, who requires assistance as a result of an Acquired Brain Injury (ABI). The HSE engaged Dr. Y, an expert in ABI from the United Kingdom (UK), to carry out an external review of the complaint. Dr. Y completed a report on her review in June 2011, but the report was not made available to the applicant. In a letter dated 16 May 2012, Mr. Greg Price, Director of Advocacy, explained that he could not release the report to applicant, because Dr. Y had not complied with the requirements of natural and constitutional justice in carrying out her review. He noted in particular that Dr. Y had not given the people mentioned in the report, including the applicant, an opportunity to comment on her findings.

On 19 June 2012, the applicant sought access to the report under the FOI Act. Following what amounted in effect to a deemed refusal of her original request (section 41 of the FOI Act refers), the applicant applied for an internal review of the matter on 25 July 2012. Acting as the internal reviewer, Mr. Price issued a decision on 9 August 2012 in which he restated his previous reasons for not releasing the report to the applicant, but with reference to section 21(1) of the FOI Act.

The applicant's application for review was received by this Office on 20 August 2012. On 15 November 2012, Ms. Melanie Campbell wrote to applicant explaining her preliminary observations on the matter. Briefly stated, Ms. Campbell's view was that, given the unusual circumstances of this case, Dr. Y's report was exempt under section 21(1)(a) of the FOI Act. The applicant made a written reply dated 4 December 2012 in which she explained that she remained deeply unhappy with the decision to refuse her request for access to the report. The matter was also discussed by telephone on numerous occasions, including on 7 December 2012.

With the authority delegated to me by the Commissioner, I have now completed my review in accordance with section 34(2) of the FOI Act. In carrying out my review, I have had regard to the written and oral submissions made by the HSE and the applicant. I have also had regard to the contents of Dr. Y's report. I consider it appropriate to conclude the matter at this time by way of a formal, binding decision.

Scope of the Review

My review in this case is concerned solely with the question of whether the HSE's decision to refuse the applicant's request for access to Dr. Y's report was justified under the FOI Act.

Analysis and Findings

Section 21(1)(a) 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. Section 21(1) is subject to a public interest test under section 21(2).

As noted by Ms. Campbell in her preliminary view letter to the applicant, this case is unusual. The matter has been further complicated by the fact that, evidently, the applicant has only been made fully aware of the current status of her complaint concerning services for her son through the HSE's submissions to this Office in the context of her application for review in relation to her FOI request for access to Dr. Y's report. I need not repeat the full details of the HSE's submissions which have been related to the applicant by letter and telephone. It is sufficient to note that Dr. Y did not carry out her review in compliance with the requirements of natural justice and fair procedures. She made findings and recommendations without giving the persons concerned, including the applicant, an opportunity to comment. Having taken legal advice on the matter, the HSE contacted Dr. Y, but she confirmed that she considered that her report was complete and that her involvement was at an end.

Thus, over two years after the applicant's complaint was first lodged, the HSE has necessarily concluded that the external review undertaken "was not completed in substance" and that "Dr. [Y's] report could not be relied upon". In the circumstances, the HSE has acknowledged that a "new review should be undertaken". Although the HSE has said that a letter was issued to the applicant on 9 August 2012 "explaining the issue in relation to Dr [Y's] report and apologising for the delay", it seems that it had not been adequately explained to the applicant that the status of her complaint remains open and that another review is needed in order to conclude the matter.

Having regard to the contents of the report and the unusual circumstances of this case, I agree with Ms. Campbell that granting the applicant's request could reasonably be expected to prejudice the effectiveness of any future review or investigation of the applicant's complaint concerning services for her son. The report makes findings and recommendations that are not safe to rely upon, yet I would expect its release through FOI to make any future investigation of the applicant's complaint more difficult by exasperating the tensions that already exist. The report could also give rise to charges of bias or prejudgment in the event that it were made available to any future reviewer. Moreover, any person or organisation subject to express or implied criticism in the report may be justifiably aggrieved and thus may be less inclined to cooperate with any future investigation. In the particular circumstances of this case, there is also reason to expect that the report could be used to undermine the significance or perceived validity of any contrary findings and recommendations in any future report.

I also accept that the release of the report in the circumstances would make it more difficult for the HSE to engage professionals as external reviewers and thus could reasonably be expected to prejudice the procedures or methods employed for the conduct of such external reviews. As a standard practice, professional indemnity insurance is provided to protect external reviewers from personal liability in the course of their work in carrying out a review. As a condition of cover, however, the insurers require the HSE to seek and receive approval from its legal advisors regarding the content of any written report or correspondence prior to the release of any such written report or correspondence to any third party. In this case, as the applicant is aware, such approval was not forthcoming because of the procedural deficiencies of Dr. Y's review. If the HSE could not be relied upon to meet the conditions of professional indemnity cover, I accept that professionals from outside the HSE would be less willing to act as external reviewers. As noted by Ms. Campbell, the HSE's claim of prejudice to its procedures or methods is a bit circular in nature given that it was Dr. Y's own failure to comply with fair procedures in carrying out her review that has given rise to the claim for exemption in the first instance. Nevertheless, it is undisputed in this case the HSE has already encountered difficulty in finding a suitably qualified professional to investigate the applicant's complaint. I accept that the task of finding suitable external reviewers in future would be significantly more difficult if the HSE could not meet the conditions of providing professional indemnity cover. I find that section 21(1)(a) applies, subject to consideration of the public interest.

As noted by Ms. Campbell, there is a public interest in openness and transparency regarding the manner in which the HSE carries out its statutory functions, including in relation to the health and social services it provides and the manner in which it investigates complaints regarding such services. In this case, however, the HSE has admitted in its submissions to this Office that the report is not considered to be reliable for procedural reasons and that a new review should therefore be undertaken in response to the applicant's complaint. The letter dated 16 May 2012 indicates that some efforts were made to remedy the faults associated with the report, but in light of the admission that a new review should be undertaken, I accept these efforts were eventually abandoned.

The applicant is understandably aggrieved that so much time and other resources were spent on producing a report that has not proved to be worthwhile. However, according to the HSE, Dr. Y, like other external reviewers, would have been made aware of the required procedures for carrying out such reviews, including the need to give the relevant parties an opportunity to comment. As noted above, Dr. Y was contacted by the HSE after her report was received, but, for whatever reason, she declined to pursue the matter further. Moreover, it seems that some of the delay arose because of contention over the terms of reference for the review, which suggests that there may have been difficulties with the process from the outset. In any event, I agree with Ms. Campbell that, on balance, it would not serve the public interest to release a report under FOI that was prepared without due regard for the requirements of natural justice and fair procedures. This is true regardless of whether or not Dr. Y was made aware of the required procedures for carrying out her review, because regardless of what went wrong here, release of the report would not remedy the situation. As Ms. Campbell observed, given the nature of the report, it is unlikely to serve the purpose for which the applicant brought the complaint with respect to the services provided to her son whereas its release would make it more difficult to carry out a new review in response to her complaint. I am satisfied that the HSE was justified in refusing access to the report in the circumstances.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of 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 an appeal must be initiated not later than eight weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator
13 December 2012