Whether HIQA was justified in its decision to refuse access to a record held by it relating to information it received in confidence concerning two nursing homes under sections 21, 23(1)(a)(i) and 26 of the FOI Act

Background

On 24 March 2014, the applicant submitted a Freedom of Information request to HIQA for access to records consisting of correspondence received by it relating to governance arrangements at two specified nursing homes. HIQA identified one record relevant to the applicant's request which contained details it received in confidence relating to safety concerns at the nursing homes. On 16 April 2014, HIQA issued its decision refusing access to the record under sections 21(1)(a) and 26(1)(a) of the FOI Act.

The applicant sought an internal review of this decision by way of letter dated 9 May 2014. HIQA's internal reviewer issued his decision on 27 May 2014, upholding the initial decision, but on the additional basis of section 23(1)(a)(i) of the FOI Act, alongside sections 21(1)(a) and 26(1)(a). On 25 September 2014, the applicant sought a review by this Office of HIQA's decision.

In the course of this review, HIQA further submitted that section 23(1)(b) of the FOI Act may apply to the record in question. I note that, in correspondence with the applicant, Mr Niall Mulligan of this Office set out his view in relation to the exemptions claimed. The applicant's solicitor indicated that she did not accept Mr Mulligan's analysis and that her client's preference was for this Office to rule on the matter. I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision.

In conducting my review, I have had regard to HIQA's decision on the matter and its communications with this Office, as well as the applicant's communications with this Office and HIQA. I have also had regard to the provisions of the FOI Act and to the record in question, a copy of which was provided to this office for the purpose 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the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.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

This review is concerned solely with the question of whether HIQA was justified in refusing access to the information sought under sections 21(1)(a), 23(1)(a)(i), 23(1)(b) and 26(1)(a) of the FOI Act.

Analysis and Findings

HIQA assumed legal responsibility for the registration and inspection of residential care services for older people in the public, private and voluntary sectors on 1 July 2009. HIQA's powers are derived from the Health Act 2007. In its submissions to this Office, HIQA contended that in addition to sections 23(1)(a)(i), 21(1)(a) and 26(1)(a), it considers that the record is also exempt pursuant to section 23(1)(b) of the FOI Act.

Although the FOI Act requires that I take care not to disclose the contents of an exempt record, I can say that it is reasonable to conclude on the basis of the record's content that what is at issue here is the protection of an important source or sources of information which would be of assistance to HIQA. The record at issue consists of two parts, the first of which relates to information received by HIQA, while the second relates to steps taken by it on foot of the information received. I will firstly consider the former.

Section 23(1)(b) of the FOI Act provides that access to a record may be refused where, in the opinion of the head, its disclosure could reasonably be expected to:-

"reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence,".

The exemption provision is aimed at ensuring that members of the public are not discouraged from co-operating with bodies or agencies in the enforcement or administration of the civil law, by providing information which might assist such bodies or agencies to perform their functions more effectively. For section 23(1)(b) to apply, three specific requirements must be met. The first is that release of the withheld information could reveal, whether directly or indirectly, the identity of the supplier of the information. The second is that the information must have been given to the public body in confidence, while the third is that the information must have been supplied to the public body in relation to the enforcement or administration of the civil law.

First requirement
The record to which access is sought by the applicant either includes the identity of the person or persons who may have given information to HIQA or contains sufficient detail to allow their identity to be deduced. This satisfies the first requirement of section 23(1)(b) conclusively and I find accordingly.

Second Requirement
The second requirement of section 23(1)(b) is that the person whose identity may be revealed through the release of the information at issue must have given information to a public body in confidence.

It is clear, given its statutory functions and obligations, that HIQA must have access to information from as many sources as possible in driving quality and safety in Ireland's health and social care services through setting and monitoring standards. HIQA has informed this Office that the functions of the Chief Inspector, as provided for at section 41(1)(c) of the Health Act 2007, are assisted by information provided by members of the public. The taking of concerns from members of the public also supports the achievement of the overall objectives of HIQA as provided for at section 8 of the Health Act 2007.

I accept that it is important for HIQA to be in a position to receive such necessary information in confidence from members of the public. Furthermore, HIQA submits that an explicit assurance as to confidentiality is given to callers to its "concerns" telephone line. It is arguable that if people providing information to HIQA in such cases were not reassured as to confidentiality, the information gathering process would be compromised by the withholding of such information. I accept that without an assurance or understanding that information being provided was provided in confidence, such persons may be reluctant to provide information. Accordingly, I find that the second requirement of section 23(1)(b) of the FOI Act has been met in the circumstances of this case.

Third Requirement
The third limb of the exemption at section 23(1)(b) refers to the requirement that the information concerned relates to the enforcement or administration of the civil law. HIQA has informed this Office that this element of the record relates to the statutory role of the Chief Inspector, one of whose functions is to register and inspect designated centres to ensure compliance with the regulations and standards, pursuant to section 41(1)(c) of the Health Act 2007.

According to HIQA, complaints and information from the public provide a very important source for the inspectorate in performing its statutory functions. Therefore, I am satisfied that the third requirement for the exemption set out at section 23(1)(b) of the FOI Act is met. I find accordingly.

Having found that each of the three requirements are met, I accordingly find that section 23(1)(b) of the FOI Act applies to the part of the record at issue relating to information received by HIQA.

The Public Interest

Section 23(1)(b) of the FOI Act is subject to 23(3) which provides that consideration must be given to the possibility that the public interest would, on balance, be better served by the release of the information than by refusing to grant the request. It is important to note that the public interest balancing test in section 23(3) differs from the public interest balancing test which exists in other exemptions in that the test in section 23(3) may be considered only where certain circumstances arise.
Those circumstances are where the records disclose that an investigation is not authorised by law or contravenes any law or it contains information concerning the performance by a public body of functions relating to law enforcement or contains information concerning the effectiveness or the merits of any programme for prevention, detection or breaches of the law. I am satisfied that no such circumstances arise in this case and that section 23(3) does not apply.

Having so found, it is not necessary for me to consider the application of sections 21(1)(a), 23(1)(a)(i) and 26(1)(a) of the FOI Act to this portion of the record.

It remains for me to consider the balance of the record, which relates to steps taken by HIQA on foot of the information received. As set out earlier in this decision, section 34(12)(b) of the FOI Act places the onus on the public body of satisfying this Office that its decision to refuse access was justified. I note that HIQA did not take issue with Mr Mulligan's view that none of the exemptions claimed by it apply to this information. Indeed, HIQA indicated a willingness to release this element of the record to the applicant. Accordingly, I find that this part of the record is not exempt and should be released to the applicant.

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 HIQA, finding that the section of the record at issue relating to information provided to it is exempt pursuant to section 23(1)(b) of the FOI Act. I direct the release of the remainder of the record, which relates to actions taken on foot of the information received.

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.

Stephen Rafferty
Senior Investigator