Whether the HSE was justified in deciding to refuse access to certain records of correspondence concerning a review of the governance and management of the NSEU on the ground that the records are exempt from release under section 21(1)(a) and section 28(1) of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant made an FOI request for access to records concerning a review carried out by the HSE. The request was sent to the review team (two named individuals) via the HSE on 15 July 2013 for access to:
"copies of all correspondence between the review team (yourselves) and Mr Greg Price HSE Advocacy Unit and/or Mr Tony Leahy HSE Mental Health Specialist. This should include all records of any meetings that either or both of them had with yourselves, all written correspondence between yourselves and either or both of them and a record of all telephone conversations and the content of those conversations between yourselves and either or both of them. I would also like a full account of the cost of the review to date and the daily rate at which each of you is being paid."
In its decision of 24 October 2013, the HSE granted the request in part by releasing records and refusing access to certain other records on the basis of section 21(1)(a) and section 28(1) of the FOI Act. The applicant requested an internal review of the decision on 7 November 2013 to refuse access to records 8, 9, 10, 11, 15, 19, 25 and 26 as numbered on the schedule provided with the original decision. The applicant made two FOI requests to the HSE and there appears to have been some confusion concerning this internal review request which resulted in a delayed response from the HSE. However, the HSE affirmed the original decision in its late internal review decision of 3 March 2014.
The applicant wrote to this Office on 23 April 2014 seeking a review of the HSE's decision. I consider that the review should now be finalised by way of a formal, binding decision.
In reviewing this case I have had regard to the following:
the HSE's decision on the matter,
the HSE's communications with this Office,
the applicant's communications with this Office,
communications between the applicant and the HSE on the matter,
the content of the withheld records provided to this Office by the HSE for the purposes of this review.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

In accordance with section 34(1)(a) of the FOI Act, as amended, the Commissioner's review must be confined to the decision taken by the public body concerned in response to relevant issues raised in an internal review application, as made under section 14 of the FOI Act. In her letter to this Office of 23 April 2014, the applicant stated that her request for relevant telephone records in her original request was totally ignored by the HSE. However, I note that in her internal review request of 7 November 2013 the applicant did not seek a review of these records and therefore the telephone records referred to by the applicant are outside the scope of this review. Having carefully examined the records the subject of this review, I take the view that record 25 is outside the scope of the request since the HSE has confirmed to this Office that it was not included in any correspondence between the Reviewers and Mr Tony Leahy and/or Mr Greg Price. Record 26 is an exact copy of record numbered 15. Therefore this review is concerned solely with whether the HSE was justified in refusing access to records 8, 9, 10, 11, 15 and 19.

Preliminary Matters

In her application to this Office, the applicant asked the Commissioner to investigate the reasons for the delays she experienced while the National Advocacy Unit of the HSE were processing her requests and also what she views as the apparently deliberate delays in the process. The applicant feels very strongly that her right to due process has been purposefully and calculatedly denied by the actions of the HSE. Matters concerning how the FOI requests and the issues which gave rise to the creation of the records in this case, were handled by the HSE are outside the remit of the Commissioner in this review. In this regard, I note that the applicant has made a number of criticisms of the HSE and I am satisfied that all relevant matters within the scope of the review and within the Commissioner's jurisdiction have been considered.

Section 43(3)
Section 43(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description I can give of the records themselves is limited as is the extent of the detail I can include concerning the reasons for my findings.

Section 13
I should explain the approach to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 13 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent.

Finally, I should explain that a review by the Commissioner under section 34 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116. In a more recent judgment, The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained: "The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]". As this review is considered to be de novo, the HSE is entitled to argue during the course of a review by this Office that exemptions not originally applied support its refusal of access to a record.

Analysis and Findings

The NSEU was a service provider to the HSE under a contract for service and in July 2013 the HSE discontinued funding the NSEU. According to the HSE, it received allegations about misappropriation of monies provided from exchequer funds and also other management issues involving members of the NSEU and its staff. The HSE appointed two external investigators to carry out a review. The records the subject of this review concern correspondence between the review team and the HSE officials who commissioned the review.

Section 28
Having examined the withheld records, it is my view that section 28 is the more appropriate exemption to apply to records/portions of records 8, 9, 10 and 19. Section 28(1) of the FOI Act is a mandatory exemption that provides that access to a record shall be refused if access would involve the disclosure of personal information. I note that the HSE's decision informed the applicant that this exemption was being applied to some of the records not included in this review. Ms Alison McCulloch, Investigator of this Office, notified the applicant of her view that personal information in records 8, 9, 10 and 19 also fell to be dealt with under section 28. The applicant is of the view that this Office has exceeded its role and has given "unwarranted relief" to the HSE under a section of the Act that did not form part of its decision. I do not agree that there is anything unwarranted in the approach of this Office to a mandatory exemption in what is a "de novo" review.

The FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. In light of that definition, I accept that the records numbered 8, 9, 10 (part) and 19 in this case contain personal information relating to certain individuals (other than the applicant) connected with the NSEU.

Therefore, I conclude that, subject to the provisions of section 28(2) and section 28(5) which I examine below, the records numbered 8, 9, 10 (part) and 19 are exempt from release on the basis of section 28 of the FOI Act and I find accordingly.

Section 28(2)
There are some circumstances, provided for at section 28(2) of the FOI Act, in which the exemption at section 28(1) does not apply. Having examined the details to which I have found section 28(1) to apply, I am satisfied that none of the circumstances identified at section 28(2) arise in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of that information nor is it appropriate to seek such consent in this case; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I find that section 28(2) does not apply to the records at issue here.

Section 28(5) - The Public Interest
Under section 28(5), however, access to the personal information of a third party may be granted where:

(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or
(b) the grant of the information would be to the benefit of the person to whom the information relates.

I do not believe that the grant of the information would be to the benefit of the third parties concerned.

The effect of section 28(5)(a) is that a record, which has been found to be exempt under section 28(1) or 28(5B), may be released if it can be demonstrated that "on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld".

The FOI Act recognises the public interest in persons being able to exercise their rights under the FOI Act, although this alone would not be sufficient, in my view, to warrant the breach of an individual's right to privacy. The applicant's public interest arguments are further examined below in the context of section 21(2). On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - both in the language of section 28 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY"). It is worth noting that the right to privacy also has a Constitutional dimension as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. I consider that, in the circumstances of this case, the rights to privacy of the various third parties whose information is at issue outweighs any public interest in granting the applicant's request. I find accordingly.

Section 21(1)(a)
The HSE relied on section 21(1)(a) to refuse access to the withheld records. However, having found that section 28 applies to exempt the records identified above, the remaining records to be considered under this exemption are 10 (part), 11 and 15. Section 21(1)(a) of the FOI Act allows a head, subject to consideration of the public interest, to refuse to grant a request for records made under the Act if access to the record concerned could, in the opinion of the head, reasonably be expected to "prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of the public body or the procedures or methods employed for the conduct thereof..."

In arriving at a decision to claim exemption under section 21(1)(a) 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. This Office accepts that section 21(1)(a) is not applicable solely to current investigations but could also cover future investigations. The test of whether the expectation is reasonable is not concerned with the question of probabilities or possibilities. It is concerned simply with whether or not the decision maker's expectation is reasonable. However, to satisfy the Commissioner of the reasonableness of the decision, it is essential that the decision maker explain how and why he or she believes release of these particular records will give rise to the harm envisaged.
The applicant is of the view that the review which was commissioned by the HSE following the allegations made is not a review for the purposes of section 21(1)(a) of the FOI Act. She states that there is a particular and specific meaning of "review" and draws attention to the Service Level Arrangement in place between NSEU and the HSE under section 39 of the Health Act. This agreement states under clause 12.1 that the Provider (NSEU) shall cooperate in a monitoring and review process to support and monitor the implementation, review and evaluation of the Arrangement. The applicant further states that the Dispute Resolution process referred to in clause 31 of the Arrangement has not been adhered to by the HSE.
The HSE disagrees with the applicant's contention that the review in question does not meet the requirements of the FOI Act and that it is strictly limited to the interpretation as set out in the Service Level Agreement. It seems to me that the HSE, following receipt of the allegations about governance and management issues in the NSEU decided to investigate the claims made by way of a review. Whether or not the HSE adhered to the Dispute Resolution procedures as laid down in the Service Level Agreement is not a matter for the Commissioner to adjudicate on. The matter at issue here is whether the HSE was justified in refusing access to the records sought under the FOI Act. Having examined the records I am satisfied that they relate to tests, examinations, investigations, inquiries or audits of the type envisaged by section 21(1)(a) regardless of the title of the process engaged in by the HSE to investigate the allegations made. While I make no finding on this, it seems to me that the type of "review" undertaken by the HSE might also be included in "functions related to management" of the type envisaged by the section 21(1)(b) exemption.
In previous decisions, the Commissioner has found that the use of the word "effectiveness" in section 21(1)(a) of the FOI Act must be interpreted as the ability of the test, examination or audit to produce or lead to a result of some kind or the ability of the procedures or methods employed for the conduct of the tests etc. to achieve their purpose. According to the HSE, the review of the governance and structures of the NSEU was not completed due to the inability of the reviewers to interview certain people individually. It contends that the reviewers could not, therefore, complete the review as the allegations were made about individuals and the review was suspended in December 2013. Despite the passage of time, it appears that the HSE intends to pursue investigations or audits into irregularities in NSEU. It also contends that the subject matter is sensitive with potentially serious implications for some individuals and it claims that people were very reluctant to come forward with information. It is the view of the HSE that releasing any information about the concerns identified by the reviewers may result in parties seeking to obstruct the process of investigation and that releasing this information could result in difficulties in data gathering for future reviewers or potentially, an Garda Síochána. The purpose of the section 21(1)(a) exemption is to prevent premature disclosure of information which it is reasonable to expect will jeopardise the outcome or process of the investigation or audit in question. I have carefully considered each of the records and consider that, in the circumstances, certain information, if released, could reasonably be expected to prejudice the effectiveness of the HSE's investigation or audit. Record number 11 and the remaining parts of record 10 do not contain any details that could be required for an audit into the alleged financial irregularities and, therefore, are not exempt under section 21(1)(a). However, record 15 details a number of issues which the reviewers felt required further investigation by way of audit and it appears that these issues will form the basis of any further audit to be undertaken. Therefore, I find that record 15 is exempt from release and that records 10 (part) and 11 are not exempt, on the basis of section 21(1)(a) of the FOI Act.
However, even where I find section 21(1)(a) to apply, I am required under section 21(2) to consider whether the public interest would, on balance, be better served by granting than by refusing the request. The applicant in her submission referred to the application of the public interest by the Chartered Accountants in England and Wales and quoted the Australian Information Commissioner. She also contends that the NSEU's "good name has been abused" and that the ability to protect the good name of NSEU falls within the public interest. In correspondence dated 21 July 2015 the applicant stated that the establishment of the NSEU was and is a fundamental part of Vision for Change, the Government National Policy for Mental Health and that the actions of the HSE in not only withdrawing funding from the organisation but also in instructing the management and employees of the HSE to desist from engaging in any way with the NSEU thus preventing the organisation from carrying out its mandate under said National Policy for Mental Health, is very much a matter of public interest. However, in relation to the question of where the public interest lies, I have had regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"]. In the Rotunda Hospital case, moreover, in the opinion of Macken J., the public interest would require "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law". I accept that there is a public interest in openness and accountability with respect to the performance by the HSE of its functions. The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business, including the HSE's conduct of investigations into allegations of wrongdoing. On the other hand, section 21 of the FOI Act protects the functions and negotiations of public bodies like the HSE. On the issue of fair procedures, I understand that the HSE put the relevant issues the subject of the review to NSEU and also endeavoured to further address these issues by arranging for the review team to meet with the individuals against whom allegations were made. However, it appears that there is some disagreement between the NSEU Executive members and the HSE resulting in the NSEU Executive members not agreeing to meet with the reviewers individually and not accepting registered letters sent to their home addresses. In any event, it is not within the remit of this Office to adjudicate on the matters which gave rise to the HSE's investigations or to judge whether the good name of an organisation or an individual has been affected. I have to assume that the HSE and any other relevant authority abide by fair procedures in dealing with allegations of financial irregularies and governance issues about the NSEU and its staff. I am satisfied that, on balance, the public interest would not be better served by granting access to the records than by refusing to grant the request and I find accordingly.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby vary the decision of the HSE in this case by (i) affirming the decision to refuse access to records numbered 8, 9, 10 (part), and 19 on the basis of section 28(1) and record 15 on the basis of section 21(1)(a) of the FOI Act and (ii) directing the release of records numbered 10 (part) and 11 with the personal information redacted in record 10. I have marked the portions of record 10 for redaction for the convenience of the HSE and will hold a copy of these records in this Office.

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. Any such 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