Whether the PSI's decision to refuse the applicant's request for access to a report into the death of X was justified under sections 21, 23, 26 and 28 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

On 23 July 2014, the applicant (via her solicitor) requested the PSI to provide a copy "of all reports" into the death of X. The PSI identified a 64 page "Investigation Report" as being relevant to the request. On 21 August 2014, it notified the applicant that it had decided to refuse her request, pursuant to the provisions of sections 21(1)(a), 23(1)(a)(iv), 26(1)(a) and 28 of the FOI Act. On 26 August 2014, the applicant sought an internal review of the PSI's decision. The decision was upheld by the PSI on internal review. On 27 September 2014, the applicant sought a review of the PSI's decision.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the relevant report, to the correspondence between the applicant and the PSI, to the correspondence between the applicant and this Office, to the correspondence between the PSI and this Office and to 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the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

The scope of this review is concerned with whether the PSI was justified in refusing to release the investigation report into the death of X. It is important to note that, although the applicant's solicitor advised this office that she was seeking a copy of the PSI's final report, the PSI has stated that the version of the report available at the time of the initial request (i.e. 23 July 2014) was a 64 page version, rather than the subsequent 147 page finalised version. The schedule of records furnished to the applicant by the PSI indicated that the report considered in its decision was the 64 page version. Both versions have been furnished by the PSI to this Office; however, for the purposes of this review, I can only consider the 64 page version.

Findings

As a preliminary point, it should be noted that a review under section 34 of the FOI Act is de novo. This means that it is based on the circumstances and the law as they pertain at the time of the review by this Office. Furthermore, the courts have taken the view that, under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large.

Additionally, 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 that I take all reasonable precautions to prevent disclosure of information contained in an exempt record. This means that the description that I can give of the record at issue is limited.

The report at issue includes an eight page report from the PSI's authorised officers, together with eight witness statements, five appendices, and certain correspondences. The PSI advises that the report was prepared in the context of an investigation carried out under section 67 of the Pharmacy Act 2007. Given the nature and contents of the report, I have decided that it is appropriate for the purposes of this decision to treat it as comprising of one single record. This is in accordance with the approach of this Office in similar cases, e.g. Case 130085 (Mr & Mrs TR & HSE).

The finalised version of the report was considered by the PSI's Registrar, who decided to commence disciplinary proceedings against a certain registered pharmacist. Following consideration of the matter by the PSI's Preliminary Proceedings Committee, the Registrar's complaint has been referred to the Professional Conduct Committee for an Inquiry, held pursuant to Part 6 of the 2007 Act.

On 14 May 2015, Simon Noone, Investigator, inquired of the PSI as to whether the Inquiry had taken place. The PSI advised him that the Inquiry had not yet been scheduled, and that it was intended to be held later in the year.

Section 21

Section 21(1)(a) of the FOI Act provides inter alia that an FOI body may refuse to grant access, if the record concerned could reasonably be expected to "prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body..."

In arriving at a decision to claim a section 21 exemption, an FOI body 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. The test of whether the expectation is reasonable is not concerned with the question of probabilities or possibilities; it is concerned with whether or not the FOI body's expectation is reasonable.

In Sheedy v. Information Commissioner [2005] IESC 35, [2005] 2 IR 272, Kearns J. stated, in relation to section 21(1), that "the onus to produce evidence of prejudice fell on the Department and in the absence of same the Commissioner was entitled, under section 34 of the Act of 1997, to hold against the Department. A mere assertion of an expectation [of prejudice] could never constitute sufficient evidence in this regard". Thus, in the present context, I consider that the PSI must show some evidence of prejudice if its reliance on section 21(1)(a) is to be justified.

The PSI contends that, as the Inquiry into the pharmacist's conduct has not been held, the statutory complaints process is ongoing. It argues that the release of the report will dissuade future co-operation by pharmacists with the investigation process. It contends that there is "a very real risk" that the release of the report will potentially contaminate any committee that is to consider the matter, and could adversely affect the evidence of witnesses before the Inquiry. It believes that any public commentary on the matter would likely result in injunctive and/or judicial review proceedings being brought to halt the complaints process, on the basis that the process is effectively sub judice.

Additionally, the PSI states that the report will not be relied upon by the Registrar in the presentation of evidence to the Inquiry, but that rather she will seek to rely upon viva voce evidence. It states that it is "extremely concerned" that the release of the report, in particular to witnesses who will give evidence to the Inquiry, could prejudice the holding of a fair and independent hearing. It argues that the release of the report has the potential to undermine the statutory process.

I am not convinced that the release of the report could reasonably be expected to dissuade co-operation by pharmacists with future investigations. In coming to this view, I note that section 67 of the Pharmacy Act 2007 affords considerable powers to authorised officers, and it creates an offence of failing to comply with an authorised officer's investigation. Therefore, the PSI's contention that the investigation process is largely voluntary does not appear to me to be well founded.

However, having considered the documents at issue, I am satisfied that the PSI was entitled to conclude that the release of the report could reasonably be expected to prejudice the effectiveness of the investigation and/or inquiry being conducted by it in this instance. In coming to this view, I am particularly mindful of the fact that the Part 6 Inquiry has not yet taken place, and that therefore the disciplinary process is ongoing. In my opinion, the PSI's concern that the release of the report at this stage could prejudice the effectiveness of the process is reasonable. I note that the witness statements disclose significant conflicts of fact, and I believe that there is a genuine risk that releasing these statements at this stage could have an impact on the evidence that is to be adduced at the Inquiry hearing. In this respect, I consider it of significance that the Registrar will not seek to rely on the report as evidence before the Inquiry. Accordingly, for this reason, I find that section 21(a) is engaged in this instance.

Section 21(2) provides that subsection (1) shall not apply in relation to a case in which, in the opinion of the FOI body concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request. Therefore, I must now consider the public interest in this case.

The PSI advises that it considered a number of public interest factors. These included, in favour of release, the public interest in ensuring accountability and public confidence in regulatory bodies, and against release, the right to privacy of the pharmacist under investigation, the ability of the PSI to effectively investigate the pharmacist's conduct, the protection of information given in confidence and the protection of personal information.

On balance, having considered the matter, I am of the opinion that the public interest in protecting the integrity of the PSI's statutory disciplinary process, and ensuring that the Inquiry is not prejudiced, outweighs the public interest in releasing the report at this time. In coming to this view, I have had particular regard to the fact that the disciplinary process has not been completed, and that the Inquiry has yet to be held. I believe that there is a clear public interest in permitting the statutory process, which is designed to ensure public safety and engender confidence in the regulation of the pharmaceutical profession, to run its course without the risk of compromising its effectiveness or proper operation. I am satisfied that this public interest currently outweighs the public interest in disclosure. However, it may well be the case that, once this statutory process has been completed, the public interest factors for consideration in the context of the section 21 exemption will change.

In conclusion, therefore, I am satisfied that section 21(1)(a) of the FOI Act applies, and that the public interest would not, on balance, be better served by the release of the report at this time. Consequently, I do not consider it necessary to consider the application of sections 23, 26 or 28 to the record.

Decision

Having carried out a review under section 34(2) of the Act, I hereby affirm the decision of the PSI to refuse the release of the record at issue.

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.

Elizabeth Dolan
Senior Investigator