Whether the HSE was justified in deciding to refuse access to parts of certain records concerning the DePuy ASR Hip Recall on the ground that the information concerned is exempt from release under sections 20, 21(1), 27(1) and 28(1) of the FOI Act

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

Background

The applicant submitted a request to the HSE for access to all reports/briefings in the National Incident Management Team (NIMT) regarding the DePuy ASR Hip Recall. In its decision of 17 April 2014, the HSE part granted the request. Of the 14 records it identified as coming within the scope of the request, it released 11 records in full and three records in part. The applicant sought an internal review of the HSE's decision to grant only partial access to certain records and on the ground that certain other records had not been considered for release. In its internal review decision of 5 May 2014, the HSE informed the applicant that it had considered an additional 29 records, of which it decided to release 10 records in full and 19 in part. Of the 19 records to which access was granted in part, 17 were redacted on the ground that the redacted information did not come within the scope of the request. The applicant wrote to this Office on 2 October 2014 seeking a review of the HSE's decision.

During the course of this review, following communications from this Office, the HSE identified three further records as coming within the scope of the request, two of which it released in full and one in part. It also released additional records/portions of records to which access had previously been granted in part. The applicant and the HSE have furnished detailed submissions to this Office and I consider that the review should now be brought to a conclusion by way of a formal, binding decision.

In reviewing this case I have had regard to the following:

• the HSE's decisions 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.

In referring to the records at issue, I have adopted the numbering system used by the HSE in the schedules it has provided both to this Office and to the applicant.

Scope of the Review

The applicant is of the view that certain records should have been considered for release by the HSE. He argues that "exchanges between the NIMT and the HSE Dept's, Hospital, Consultants, IMB, Suppliers, Legal Teams etc." should have been considered. I agree with the HSE that the wording of the applicant's request is such that the records identified by the applicant are not captured by the request. However, this review will consider whether the HSE has taken all reasonable steps to locate all relevant records coming within the scope of the request. Having regard to the further release of information during the course of the review, it will also consider whether the HSE was justified in withholding certain information from the following records:

Records 2, 3, 4, 11, 13 and 15 from schedule 1
Two records identified as pages 133 - 137, and 138 - 143 from schedule 2 and which I will refer to for the purposes of this decision as records A and B respectively, and
Record 2 from schedule 3.

As I have outlined above, the HSE redacted information from 17 of the additional records it released at internal review stage on the ground that the information in question was not covered by the FOI request. Having examined the records, I agree. Therefore, the 17 records in question do not form part of this review.

Preliminary Matters

Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the HSE to satisfy this Office that its decision to refuse access to the information redacted from the records at issue was justified.

Analysis and Findings

Section 28(1)
The HSE relied on section 28(1) to refuse access to certain information contained in records 2, 3, 4, and 13 from schedule 1, records A and B from schedule 2 as described above and record 2 from schedule 3. Section 28 provides for the refusal of a record where access would involve the disclosure of personal information relating to a person other than the requester. The FOI Act defines personal information in section 2 as "information about an identifiable individual that (a) would in the ordinary course of events be known only to the individual or members of the family or friends of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential." This section goes on to detail twelve specific instances of information which is regarded as personal including ".... (iii) information relating to the employment or employment history of the individual, ..... (vii) a number, letter, symbol, word, mark or other thing assigned to the individual by a public body for the purpose of identification or any mark or other thing use for that purpose ...".

The information withheld from the records concerned comprises numbers of affected patients in public and private hospitals (where the number is five or less), numbers/letters allocated to certain consultants, and the names of certain consultants, three of which are assigned to private hospitals. In its submission to this Office, the HSE contended that while there was a sizeable number of individuals involved in the DePuy ASR Hip Recall, there were very few patients in some hospitals and as such, the individuals concerned could be readily identifiable. It also claimed that the records describe the activity of private providers.

Having examined the records, I fail to see how the release of the numbers of patients, of itself, would involve the disclosure of personal information relating to identifiable individuals. Similarly, it does not appear to me that the disclosure of the letter or number assigned to particular consultants would involve the disclosure of personal information relating to identifiable individuals. Indeed, it seems that the letter or number assigned to consultants is for the purpose of anonymisation and not for the purpose of identification as defined in the Act. I find therefore, that such information is not exempt under section 28(1).

However a number of private consultants are identified by name in records A and B from schedule 2 and I am satisfied, taking account of the definition of personal information as outlined above, that section 28(1) applies to such information.

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 information 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), 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 and I find that section 28(5)(b) does not apply

The effect of section 28(5)(a) is that a record to which section 28(1) has been found to apply 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.

There is a clear public interest in promoting openness, transparency and accountability in relation to the manner in which the HSE dealt with matters relating to the ASR Hip Recall. 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 privacy rights of the various third parties whose information is at issue outweighs, on balance, the public interest in granting the request. Accordingly, I find that the names of the consultants identified in records A and B from schedule 2 are exempt from release under section 28(1).

Section 20
The HSE relied on section 20 of the FOI Act to refuse access to parts of records 11 and 13 from schedule 1. Section 20(1) provides that a public body may refuse a request where the record sought contains matter relating to the deliberative process of a public body, including opinions, advice, recommendations, and the results of consultations, considered by the body for the purpose of those processes. However, section 20(2)(b) provides that section 20(1) does not apply in so far as the record contains factual information. Furthermore, section 20(3) provides that section 20(1) does not apply where the public interest would, on balance, be better served by granting than by refusing the request. The deliberative process can be described as a thinking process that refers to the way a public body makes decisions. The process involves the gathering of information from a variety of sources, including external consultation, and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice.

The HSE stated that the issues redacted involved discussions between DePuy, the HSE and Private Hospitals regarding legal processes. In essence, the vast majority of the relevant redacted information contains factual descriptions of how certain matters or issues were progressed. I also note that much of the redacted information in the records is contained in a briefing that was prepared for a meeting of the Joint Cabinet Committee on Health and Children on 19 July 2012 that is publicly available. Even if I were to accept that the information at issue can be described as matter relating to the deliberative process of the HSE, and it is not clear to me that it can, it seems to me that the vast majority of the information is a factual account of what transpired. It is not, for example, information that might be described as being in the nature of opinion, advice, recommendations, or information considered for the purpose of deliberations. Furthermore, given that any deliberations that may have taken place on related matters have clearly concluded and given that much of the information at issue is publicly available, I fail to see how the public interest would be better served by refusing the request. In the circumstances, I find that section 20 does not apply to the redacted parts of records 11 and 13.

Section 21(1)(c)
The HSE also relied upon section 21(1)(c) to refuse access to the relevant parts of records 11 and 13 and to part of record 15, all from schedule 1. Section 21(1)(c) provides for the refusal of a request where the public body considers that access could reasonably be expected to 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. As with section 20(1), this exemption is subject to consideration of a public interest balancing test (section 21(2) refers). Section 21(1)(c) is designed to protect negotiating positions taken or plans used for the purpose of any negotiation carried on, or to be carried on by or on behalf of the Government or a public body from being disclosed directly or indirectly to other parties in negotiations. While I accept that there were negotiations between the HSE, DePuy and Private Hospitals concerning litigation in the DePuy ASR Hip System Voluntary recall, there is nothing in the record at issue, in my view, which discloses negotiating positions taken or plans used for the purpose of those negotiations that has not already been disclosed in the briefing prepared for Cabinet on 19 July 2012 referred to above. Furthermore, there is nothing in the record which discloses negotiating positions which may be taken by the HSE in the future or plans to be used for the purpose of the HSE carrying out future negotiations with private entities concerning any other recall. I find that section 21(1)(c) does not apply to the relevant parts of records 11, 13 and 15.

Section 27(1)(b) and 27(1)(c)
The HSE redacted certain information from record 2 from schedule 3 on the basis of section 27(1)(b) and 27(1)(c) of the FOI Act. Section 27(1)(b) provides that a public body shall refuse a request if the record sought contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. Section 27(1)(c) of the FOI Act provides that a public body shall refuse a request if the record sought contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. This exemption is subject to consideration of the public interest balancing test provided for in section 27(3).

The HSE did not put forward any specific arguments as to how the release of the information could give rise to the harms which section 27(1) seeks to protect against, although it suggested that the disclosure of the information would prejudice the position of a private contractor. As I have outlined above, the information withheld from the record comprises numbers/letters allocated to certain consultants, the disclosure of which would not, in my view, involve the disclosure of personal information relating to the relevant consultants. Accordingly, I see no basis for finding that the release of the information in record 2 from schedule 3 could possibly give rise to any of the harms identified in section 27(1). Accordingly, I find that section 27(1) does not apply.

Additional Records
In his submission to this Office the applicant identified additional records that he believed should have been released on foot of his FOI request. These records include:

i) Reports showing a track of MRI's/X-rays/Blood Tests taking place and overall analysis of what they were showing and an overall track of Patients Clinic appointment's and revisions,
ii) Information, provided in a PQ, giving detailed usage for selected hospitals in addition to ASR workload and HSE Hospital sales,
iii) Reports concerning i) patients who were facilitated, ii) 18 complaint queries and iii) patients who had initial surgery in Kilcreene/Whitfield, in line with information provided to the Oireachtas in July 2012,
iv) Reports showing why NIMT was "stood down" and who decided on this and information on a "due diligence handover".

The HSE contend that the records identified at i) are not held by the NIMT and therefore are not available. According to the HSE, the records identified at ii) and iii) were responses to a PQ and information made available at an Oireachtas Joint Cabinet Committee and were activities carried out by the HSE that did not go through the NIMT. According to the HSE, the record identified at iv) was included in record 15 from schedule 1 but it did not have the title of "Due Diligence". I accept the position of the HSE regarding these records and I am satisfied that the HSE has taken all reasonable steps to locate all relevant records coming within the scope of the request.

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. While I affirm the decision to refuse access to the names of private consultants under section 28 of the FOI Act as contained in records A and B, I annul the decision to refuse access to the remaining withheld information in the records 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. 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.

Stephen Rafferty
Senior Investigator