Whether the HSE was justified in its decision to refuse access to some of the applicant's employee records on the basis of legal professional privilege under section 22(1)(a) of the Act; under section 21 of the Act (release could affect the functions and negotiation positions of the HSE) and on the basis that further records sought by the applicant do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts under the provisions of section 10(1)(a) 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 submitted an FOI request to the HSE on 23 October 2013 requesting a copy of her entire personnel file.

The HSE issued its decision in response to this request on 6 December 2013. The HSE released certain records to the applicant but withheld others on the basis of sections 20(1)(a), 21(1), and 22(1)(a).

The applicant applied for an internal review of this decision on 10 December 2013. In its internal review decision of 4 February 2014, the HSE varied its original decision and released further records to the applicant. However, it upheld its decision in relation to certain records withheld under sections 22(1)(a), 21(1) and 20(1)(c).

The applicant was not satisfied with this response and applied to this Office for a review of the HSE's decision on 13 May 2014. The applicant considered that she should be granted access to all records held on her personnel file and also that the HSE had not located all records that came within the scope of her request.

During the course of this review it became apparent that the HSE had not located and considered all records within the scope of this request, in particular, records relating to positions held by the applicant during her career at the HSE prior to 2008. The applicant clarified to Mr. Christopher Campbell of this Office on 28 July 2014 that she was seeking records beyond those considered by the HSE in its earlier decisions. This required extensive searches to be conducted by the HSE which took some time to complete.

Following additional searches the HSE issued further decisions on the records found on 7 May 2014, 14 August 2014, and 15 August 2014. The HSE forwarded copies of these decisions and the records considered to this Office on 10 November 2014. The fact that the HSE divided the applicant's request and issued a number of internal review decisions, released records to the applicant as they were found and released some records more than once has contributed to the delay in processing this review. The reason the HSE did this was because of the extremely broad scope of the applicant's request, and this FOI request might have been dealt with more satisfactorily, and quickly had the request been more specific in scope. The HSE also addressed submissions made by the applicant to this Office raising concerns that further records existed which should have been released in response to her FOI request.

In an email to Mr. Campbell of this Office on 18 September 2014 the applicant stated that she understood that substantial searches had been carried out to locate records pertaining to the early part of her career and that she would be satisfied with a decision under section 10(1)(a) in relation to records that did not relate to the periods 1994 to 2011. The applicant went on to state that she was "primarily concerned with records... from January 1st 2011 to date." The applicant specified that she now specifically sought records relating to three management posts she held from September 1 2008 to date. The HSE subsequently carried out detailed searches to locate all records relating to the applicant's employment in the three specified positions for this time.

Following receipt of the responses from the HSE in relation to various queries arising from the applicant's submissions, I now consider that this review should be brought to a conclusion by the issue of a formal binding decision. In conducting this review I have had regard to the decisions of the HSE on this request and its communications with this Office; the communications of the applicant with the HSE and this Office; and the provisions of the FOI Act.

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.

Preliminary Matters

While I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue is somewhat limited as is the level of detail I can disclose in relation to the HSE's submissions.

Scope of Review

The applicant in her submissions during the course of this review requested information in relation to emails "to and from HIQA". The HSE has stated that the emails contemplated by the applicant do not relate specifically to her but relate to the functioning and role of HIQA with regard to services in which the applicant worked at some stage. These emails were not a part of the applicant's personnel file and do not come within the scope of the applicant's original request.

The applicant in her submissions also requested a copy of a mediation agreement which resulted from a mediation process she engaged in with the HSE. HSE Employee Relations HSE Dublin North East advised this Office that this record was not on the applicant's personnel file since, due to the confidentiality of this process, the agreement is held by the mediator. Accordingly, this record is also outside the scope of this review.

The position of the HSE is that a number of records within the scope of this request are exempt from release under sections 21 (Functions and negotiations of public bodies), are legally privileged records which are exempt under section 22(1)(a) of the Act, and that it does not hold any further records within the scope of this request. Therefore this review is concerned with the question of whether the HSE was justified in refusing access to the information requested on the basis of sections 21, 22(1)(a) and also under section 10(1)(a) of the FOI Act on the basis that further records do not exist or cannot be found after all reasonable searches have been conducted.

Analysis and Findings

Section 22
Section 22(1)(a) of the FOI Act provides that a request for a record shall be refused if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. The Commissioner accepts that legal professional privilege enables maintaining the confidentiality of two types of communication:
- Confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and
- Confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

Section 22(1)(a) does not provide for a public interest balancing test.

In its decision and internal review decision the HSE withheld under section 22(1)(a) records numbered 36, 37, 45-46, 47-49, 50-52, 53-55, 58, 114, 115-121, 128, 143-145, 147-148, 154, 157-158, 183-185, 187-190, 199-204, 206-213, 219-222, and 236-239. I have examined all of these records and set out my findings below:

• - Record 36 is a note of a teleconference between the HSE and its legal adviser.
• - Record 37 is an email from the HSE to its legal adviser.
• - Records 45-46 is an email from the HSE to its legal adviser.
• - Record 47-49 is correspondence from the HSE's legal advisers to the HSE, Records 37 is an email from the HSE to its legal adviser.
• - Records 50-55 consist of correspondence to and from the HSE and its legal advisers containing legal advice.
• - Record 58 is an email from the HSE to its legal adviser.
• - Record 114 is an email to the HSE from its legal adviser.
• - Records 115-121 consists of email correspondence including that between the HSE and its legal advisers.
• - Record 128 is an email from the HSE to its legal adviser.
• - Records 143-145 is email correspondence from the HSE to its legal adviser.
• - Records 147-148 contain legal advice to the HSE from its legal advisers.
• - Record 154 consist of emails within the HSE, referring to its legal advisers, the dominant purpose of which is the preparation for contemplated/pending litigation.
• - Records 157-158 consist of emails to the HSE from its legal adviser.
• - Records 183-185 contain legal advice to the HSE from its legal advisers.
• - Records 187-190 contain emails from the HSE to its legal advisers.
• - Records 199-204 consist of emails containing legal advice communications to the HSE from its legal advisers.
• - Records 206-213 consist of emails including emails to and from the HSE and its legal advisers.
• - Records 219-222 consist of emails including emails to and from the HSE and its legal advisers.
• - Records 236-239 consist of emails including emails to and from the HSE and its legal advisers.

In relation to these records, I am satisfied, having examined their content, that one or both limbs of legal professional privilege applies and accordingly I find that the HSE was justified in applying the exemption at section 22(1)(a).

The applicant in her submissions specifically referred to an email dated 29 November 2012 between two HSE officials. While the applicant is aware of the email and may be in possession of same, I must examine whether the record is eligible for release under the FOI Act. In this regard, it is immaterial whether the applicant is already aware of the contents of the record or indeed if she holds a copy of the record. The email the applicant refers to contains two emails, which the HSE released to the applicant on 29 September 2014. However, the HSE claim the remainder of the record attract's legal professional privilege. Having reviewed the record (a copy of which was provided to this Office for the purposes of this review on 10 November 2014), I am satisfied that the part withheld does attract legal advice privilege, and accordingly I uphold the decision of the HSE in relation to this record.

Section 21
The HSE relied upon sections 21(1)(a), 21(1)(b) and 21(1)(c) of the FOI Act in its decision to refuse access to a number of records, as set out below. Section 21 of the Act states:
(1) A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to:­
(a) 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,
(b) have a significant adverse effect on the performance by a public body of any of its functions relating to management (including industrial relations and management of its staff), or
(c) disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or a public body.

A record found to be exempt under section 21(1) of the Act shall be released if, on balance, the public interest would be better served by granting than by refusing to grant the request concerned (section 21(2) refers).

The HSE withheld the following records under the three subsections of section 21:

• - 21(1)(a): 94, 109-111
• - 21(1) (b): 94, 109-111,
• - 21(1)(c): 94, 109-111, 154,170, 199-204, 206-213, 231, 236-239, 246-248

In arriving at a decision to claim a section 21 exemption, 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.

21(1)(b)
Section 21(1)(b) of the FOI Act allows a head, subject to consideration of the public interest, to refuse to grant a request for information if access to the record concerned could, in the opinion of the head, reasonably be expected to have a significant, adverse effect on the performance by the body of any of its functions relating to management (including industrial relations and management of its staff). When invoking section 21(1)(b), the FOI body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Not only must the harm be reasonably expected but it must also be expected that the harm will be of a significant nature.

The FOI body should then consider the reasonableness of its expectation that the harm will occur. In examining the merits of an FOI body's view that the harm could reasonably be expected, the Commissioner does not have to be satisfied that such an outcome will definitely occur. The test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable. It is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations.

While I am constrained by the provisions of section 43(3) in describing the records at issue in this case in detail, I can say that they relate primarily to an industrial relations grievance between the applicant and the HSE. The HSE submitted that Senior Managers must, in dealing with industrial relations matters, "be able to freely discuss and deliberate their approaches and consider all options, in writing if necessary, before deciding on their definitive approach to evolving issues. The performance of this particular function could reasonably be expected to be adversely affected if this was restricted due to the possibility of this process entering the public domain." The HSE claimed that the release of the correspondence will cause the erosion of trust in the thinking process and further submitted that release of a record which serves to consider a range of approaches rather than representing a final position could be misleading.

Having examined records 94 and 109-111, I consider that the HSE has identified the harm expected and has justified its position in light of the contents of the records. As I have found the records to be exempt under subsection (b) there is no need for me to consider records 94 and 109-111 under section 21(1)(a). I should note that the HSE has also contended that record 94 is also exempt under section 20(1)(a), however, as I have found this record to be exempt under subsection 21(1)(b) there is no need for me to consider section 20(1)(a).

21(1)(c)
In relation to section 21(1)(c) of the FOI Act, generally speaking, that subsection is designed to protect negotiating positions or plans, etc., from being disclosed directly or indirectly to other parties. The Commissioner accepts that, generally speaking, proposal-type information relating to a public body's negotiations would be exempt under section 21(1)(c).

It is important to note that this exemption does not contain a harm test (unlike section 21(1)(a) and 21(1)(b)). It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc.

As records 94, 109-111 (section 21(1)(b)), 154, 199-204, 206-213, and 236-239 (section 22(1)(a)) have already been found to be exempt, it is not necessary for me to consider them again under 21(1)(c).

The HSE submits that the records it has withheld under 21(1)(c) set out:
[A] range of potential options that were being considered (by various offices of the HSE with managerial responsibility for the applicant) with a view to formulating the best outcome for all concerned. These discussions and considerations serve to consider a range of approaches and options rather than representing a final position, and an out of context release of these records could be misleading to a third party as it could be constituted as a misrepresentation of the facts and out of context, portrayed or assumed as a definitive position rather than inputs into the negotiating, or deliberative process. The requester has already been furnished with the final agreed position. (sic)

Having examined records 170, 231, and 246-248, I consider that section 21(1)(c) applies, and I find accordingly.

Section 21(2)Section 21(2) provides that subsection (1) shall 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. I have, therefore, considered the public interest in this case.

The public interest factors in favour of release of the records include the public interest in requesters exercising their rights of access under the FOI Act and the public interest in people having access to records that relate to their personal information; there is also a public interest in public bodies being open and transparent in their functions. However, there is a strong public interest in public bodies being able to carry out investigations into sensitive matters, and to perform their functions relating to management and industrial relations in an effective manner, there is also a public interest in public bodies' ability to carry on negotiations, where those processes involve exchanging information in a frank and open manner during the decision making process.

On balance, having carefully considered the various factors for and against release, including the fact that release of records under the FOI Act amounts to disclosure to "the world at large", I consider that on balance, the public interest in openness and transparency of public bodies has been sufficiently satisfied by the release of the majority of the records identified in this case. Having examined the information refused by the HSE under section 21, I am satisfied that, on balance, the public interest is not better served by granting the request. Accordingly, I find that section 21(2) does not apply in this instance.

Section 10(1)(a)
Section 10(1)(a) of the FOI Act states:
A head to whom a request under section 7 is made may refuse to grant the request if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

The Commissioner's role in cases such as this is to review the decision of the public body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the public body in looking for relevant records. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for records were reasonable. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records that a requester believes are in existence. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website,www.oic.ie).

The HSE advised this Office on 10 November 2014 of the searches carried out in four different sections of the HSE, after which a further 141 records were located. Of these records 131 were released to the applicant; 10 records were considered not personal to the applicant and not within scope of the request. A further 64 records not held on the applicant's personnel file but which mentioned the applicant in the body of the correspondence/emails were also released to the applicant.

The position of the HSE is that, apart from the records that have been identified and scheduled in response to this request, further records requested by the applicant do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.

During the course of this review the applicant indicated her dissatisfaction that records relating to the earlier part of her career had not been released. The HSE conducted further searches and located additional records which came within the scope of the applicant's request which were forwarded to the applicant as they were located. The HSE carried out extensive searches at various locations in order to locate further records and now submits that it has exhausted all avenues to locate further records. Details of the searches made have been supplied to the applicant. Accordingly, insofar as there may be or have been pre 2008 records that have not yet been located and released to the applicant, I accept that these records do not exist or cannot be found after all reasonable searches have been undertaken to ascertain their whereabouts.

However, the applicant has expressed concern that not all post 2008 records have been identified and released, or forwarded to this Office for review.

The applicant has also specifically referred to certain records which she believes should exist and be released and it is appropriate to refer to these here. The applicant indicated there may be records of a meeting on 13 June 2012 between the HSE Area Manager and HIQA which referred to her specifically. The HSE Area Manager confirmed that there was no record of the meeting taken by the HSE. The meeting was convened by HIQA. According to the HSE an archival search was undertaken in this relation to this meeting. The only record found relating to this meeting was a letter from HIQA to the HSE Area Manager thanking him for attending. There was no mention of the applicant in the letter. Therefore, I conclude that records in relation to this meeting that come within the scope of the applicant's request do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts. Taking into consideration the HSE's explanation and subsequent efforts to provide some relevant information to the applicant, I find that the HSE is justified in refusing access to the records sought on the basis of section 10(1)(a) of the FOI Act.

The applicant further queried whether a final version of minutes existed in relation to a meeting she attended on 27 November 2012 concerning her grievance. The HSE contend that no final version of these minutes is in existence. The draft minutes were released to the applicant in response to her FOI request and also as part of a grievance procedure. I have no reason to doubt the submission of the HSE regarding this record and, accordingly, I uphold the decision of the HSE in line with the provisions of section 10(1)(a).

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the HSE.

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