Whether the Department's decision to refuse the applicant's request for access to a settlement agreement with the Medical Defence Union was justified under the FOI Act.

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

Background

In a request dated 2 July 2013, the applicant sought copies of any record of the final agreement concluded between the Minister for Health and the Medical Defence Union (MDU), which was publicly announced by the Minister on 18 December 2012 and in respect of which a settlement sum of €45 million was received by the State. The Department identified a document entitled "Agreement on the Settlement of Litigation" as relevant to the applicant's request, but ultimately denied access to the record under section 26(1)(b) of the FOI Act. By letter dated 17 October 2013, the applicant applied to this Office for a review of the Department's decision.

On 23 January 2014, Ms. Melanie Campbell, Investigator, wrote to the applicant to notify him of her preliminary view that the Department's decision was justified under section 26(1)(b) of the FOI Act and to give him an opportunity to withdraw his application for review in the circumstances. The applicant replied to Ms. Campbell's letter in a submission dated 6 February 2014 in which he requested that a binding decision be made in this matter.

I have now completed the review in accordance with section 34(2) of the FOI Act. In carrying out my review, I have examined the record at issue. I have also had regard to the submissions made by the Department, the MDU, and the applicant.

Scope of the Review

This review is concerned solely with the question of whether the Department's decision to refuse access to the record of the final agreement between the Minister for Health and the MDU was justified under the FOI Act.

Analysis and Findings

Section 26(1)(b) is a mandatory exemption that applies where "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". Under section 26(2), however, the confidentiality exemption does not apply to a record prepared by a staff member 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".

As Ms. Campbell explained to the applicant, the agreement at issue in this case was reached in settlement of a long-standing dispute between the MDU and the Department. It includes a confidentiality clause which applies to the terms of the agreement except insofar as the parties agreed that information could be released in the Department's press release of 18 December 2012 and the MDU's report and accounts statement for the year ending 31 December 2012. The confidentiality clause provides for certain other limited exceptions, but none of the exceptions would allow for the release of the document under the FOI Act, which is regarded, in effect, as release to the "world at large". Moreover, I find no basis for concluding that section 26(2) is of relevance in relation to the agreement.
The applicant notes that in Case 000528, Sunday Times and North Eastern Health Board (14 October 2014), the former Commissioner stated:

"I have concerns about the use of confidentiality clauses by public bodies since the advent of Freedom of Information and I believe that FOI imposes some restrictions on the use of such confidentiality clauses."

The applicant also argues that the agreement should nevertheless be released in the public interest.

However, as the applicant is aware, section 26(1)(b) is not subject to the general public interest balancing test under section 26(3). Moreover, having regard to the Supreme Court case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] 1 IR 729, [2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"], I consider that it is not open to this Office to make an exception to an exemption provision that has not been legislated for by the Oireachtas.

In Rotunda Hospital case, Mrs. Justice Macken emphasised in reference to section 6(7) of the FOI Act that "there is simply no statutory 'right of access' to any records covered by Part III of the Act". She explained:

"When considering how the potential tension between competing rights has been resolved, it is important to consider the entire Part III of the Act. I have set out some provisions of this in detail, in light of the particular issues arising under s.26(1) and s.28 in this appeal. It is both nuanced and sophisticated, and strikes varying balances between competing claims and rights. The Oireachtas has recognised first, that certain established legal rights must be respected, and there is clear provision for this. Among those rights are information disclosed in circumstances of confidence, and confidential information disclosed to parties pursuant to contract, or by statute, giving rise to a duty of confidence, trade secrets and similar rights. . . . In all the different circumstances set out in Part III, it would clearly be contrary to public policy that a person or body incorporated by statute, such as the Commissioner in the present appeal, might infringe those rights in response to a broad right of access provided for in S.6(1), without having regard for the proper protection of a competing right, which could well arise, if the specific provisions found [in] Part III were not also included in the Act."

The Oireachtas has determined that a duty of confidence provided for by agreement must be respected unless the record concerned falls within the ambit of section 26(2) of the FOI Act, which the agreement between the Minister and the MDU does not. As noted in previous cases, a duty of confidence may still be subject to public interest considerations. However, it was also acknowledged in previous cases (e.g., in Case 090163, The Sunday Times and Office of the Revenue Commissioners (10 Sept. 2010), available at www.oic.gov.ie), that the public interest grounds which may justify or excuse a breach of a duty of confidence are quite narrow and include, for example, the revelation of wrongdoing or danger to the public.

Moreover, as noted in Case 130017, Mr. X and the Department of Expenditure and Reform (11 April 2013), it has been recognised by the Irish courts that there is a public policy of encouraging parties insofar as possible to settle their disputes without recourse to costly litigation. FOI is not intended to undermine the public interest in the settlement of disputes. I should also emphasise that the settlement sum of €45 million was not paid by the State but rather to the State by the MDU; costs arising from the management of related liabilities by the State Claims Agency will presumably be accounted for through other appropriate oversight mechanisms. In the circumstances, I am satisfied that section 26(1)(b) applies to the agreement at issue and that there are no grounds for finding that release of the record under FOI is warranted.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Department 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.

Peter Tyndall
Information Commissioner