Whether the HSE was justified in refusing to release certain information relating to payments made by the HSE to the Irish Medical Organisation (the IMO) from 2003 to 2014

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

On 5 September 2014 the applicant made a request to the HSE for details of all monies given by it to the IMO from 2003 to the date of her request, to include the total monetary amount and the reasons for the monies given, and to whom the monies were addressed. By letter dated 5 November 2014 the HSE refused the request. On 21 November 2014, the applicant sought an internal review of that decision. In its internal review decision dated 2 December 2014, the HSE upheld its earlier decision to refuse the request. On 21 January 2015, the applicant sought a review by this Office of the HSE's decision.

During the course of this review, the HSE initially identified the following seven records as coming within the scope of the applicant's request:

Letter dated 24 January 2002 from the IMO with four pages attached
Letter dated 21 November 2003 from the IMO with four pages attached
Letter dated 30 January 2004 from the IMO with two pages attached
Letter dated 15 March 2004 to the IMO
Letter dated 2 December 2004 to the IMO
Letter dated 21 December 2004 from the Department of Health
Letter dated 15 May 2008 from the HSE with 4 pages attached

During the course of the review, Ms Sandra Murdiff, Investigating Officer, notified the IMO of the review and invited submissions on the matter in accordance with section 34(6) of the FOI Act. On 10 September 2015 the IMO indicated that it had no objection to the release of Records 1-3 above to the applicant, subject to the redaction of third party personal information. Consequently, the HSE released these three records in part to the applicant.

On 11 December 2015, the HSE informed this Office that it had located one further record relating to a payment made by the HSE to the IMO in July 2005, namely a copy of a bank statement relating to a cheque payment made by the HSE to the IMO in 2005. According to the HSE, the cheque issued in July 2005 but did not show up on the bank statement until November 2005, presumably when it was cashed. For the purpose of this review, I will refer to this record as Record 8. I understand that the HSE intends to release the relevant part of this record to the applicant, namely the amount paid. The record contains no details as to the reason for the payment or the person to whom the payment was addressed and it is the HSE's position that it can find no further records which contain the information sought.

In conducting my review, I have had regard to the HSE's decisions on the matter and its communications with this Office, and to the applicant's communications with this Office and the HSE. I have also had regard to the records coming within the scope of the request, copies of which have been provided to this Office 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. While the HSE referred to section 35(1)(b) of the 2014 Act in its decision, this review will refer to the equivalent provision in the 1997/2003 Acts, i.e. section 26(1)(b).
Scope of Review

I note that the applicant's request refers specifically to payments made by the HSE to the IMO from 2003 to 2014. During the course of the review, the HSE argued that it was established under the Health Act 2004 and did not come into operation until 1 January 2005. The HSE stated that relevant payments to the IMO prior to this date were made by the General Medical Services (Payments) Board (the GMSB). While the functions of the GMSB were subsumed into the newly created HSE, the GMSB was an independent statutory body which did not come under FOI. Having regard to the wording of the applicant's request, I am of the view that Records 1-6 do not fall within the scope of her request, as they relate to payments made by the GMSB, not the HSE.

Record 7 comprises five pages which relate to a payment to the IMO made by the HSE in 2008. Having regard to the wording of the applicant's request, the only information contained in Record 7 that comes within the scope of the review is the amount paid, the reason for the payment, and to whom it was addressed. Accordingly, this review is concerned with whether the HSE was justified in refusing to release the relevant information in Record 7 and whether it was justified in deciding that no further records containing relevant information relating to the payment referred to in record 8 exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Preliminary Matters

It is relevant to note, as a preliminary matter, that section 43(3) of the FOI Act requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. It is also relevant to note that the release of a record under the FOI Act is considered, effectively, as release to the world at large.

Analysis and Findings

Record 7
Section 26(1)(b) is a mandatory exemption, which provides that a request shall be refused where disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law.

The HSE stated that relevant payments made by it, and by the GMSB, to the IMO do not relate to a service provided by the IMO under a contract for services. It is my understanding that the Department of Children and Health (the Department) operated a scheme aimed at reducing escalating drug costs (the Indicative Drugs Target Savings Scheme (IDTS)). The HSE stated that, in 2000, the Department made a provision for funding of a number of initiatives from the IDTS budget, including a primary care website (www.mygp.ie) and a general practice development initiative. As I understand it, the IMO administered the website and the GP development programme, and, in return, the GMSB made payments to the IMO in respect of the expenses and maintenance costs involved (Records 1-6).

As I have outlined above, Record 7 contains details of a payment made by the HSE to the IMO in 2008. The payment was made in settlement of a dispute between the IMO and the HSE concerning funding related to the IDTS budget. The HSE stated that the dispute was mediated and subsequently settled without the need for legal proceedings, and that the mediation agreement contains a confidentiality clause by which the HSE is bound. I have examined the settlement agreement in question. It contains a confidentiality clause which requires that the agreement remain confidential to the parties and that neither the agreement nor the matters discussed at the mediation shall be disclosed to any person other than certain specified interested parties.

The HSE provided this Office with letters from solicitors acting for the IMO, whom it consulted on receipt of the applicant's request. The IMO was not willing to waive the confidentiality clause in the settlement agreement and did not agree to the release of the record at issue. The HSE stated that it is acutely aware of its obligations under the FOI Act and that it would be willing to release the record in question but that it is constrained from doing so. It stated that its legal advisers have advised that release of the information requested by the applicant would lead to a breach of the confidentiality clause in the settlement agreement in question.

Having carefully considered the provisions of the agreement in question, I am satisfied that the disclosure of the details sought by the applicant as contained in Record 7 would constitute a breach of a duty of confidence provided for by a provision of the mediated agreement.

However, that is not the end of the matter. Section 26(2) of the FOI Act provides that subsection (1) shall not apply to a record which is prepared by a head, directors or staff members of a public body, or a person who is providing a service for a public body under a contract for services in the course of the performance of his or her functions, unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body, or a head, director, or member of staff of a public body, or someone who is providing or provided a service for a public body under a contract for services.

As Record 7 was created by the HSE, I must consider whether section 26(2) serves to dis-apply section 26(1)(b) in this case. While I am satisfied that the duty of confidence is owed to the IMO, GMSB/HSE and the IMO, I am also satisfied that the IMO was not providing a service for the HSE under a contract for services insofar as the payment at issue is concerned. Accordingly, I find that section 26(2) does not apply.

For the sake of completeness, I should add that while section 26(1)(b) is not subject to the general public interest balancing test under section 26(3), it is, however, well established that an action for breach of confidence is subject to a public interest defence. In this regard, I note the HSE's statement that considerations such as disclosure of iniquity, a crime or conduct that represents a danger to public health do not apply in this case and could not be used as a public interest defence in terms of justifying a breach of the duty of confidence owed. The HSE also stated, in essence, that the legal risks and potential costs attaching to such a breach, based on the likelihood of a legal challenge by the IMO, would not be not in the public interest.

The applicant argued that the HSE's refusal of this record is not in the public interest as the taxpayer has the right to know what monies have been paid. She also contended that the insertion of confidentiality clauses where there is no basis for them, in effect, makes the FOI Act redundant. On the other hand, the IMO contended that there was a public interest in protecting and upholding the confidentiality of negotiations and communications between parties with a view to settling a dispute without resource to the Courts. I note that the previous Commissioner, in Case 080208 (Mr. John Burns, The Sunday Times and Trinity College Dublin, which is available in full on our website, www.oic.ie) noted that confidentiality is generally a significant element in alternative dispute resolution processes. It has been recognised by the Irish courts that there is a public policy of encouraging parties insofar as possible to settle their disputes without recourse to costly litigation. FOI is not intended to undermine the public interest in the settlement of disputes. In this case, confidentiality is expressly provided for in the mediation agreement and the settlement agreement. I do not accept that the FOI Act permits or requires the disclosure of the record at issue, which is the subject of a confidentiality clause in an agreement, where one of the parties concerned has not consented to release.

The IMO also argued that the public interest in openness and transparency in the expenditure of public funds in this case has been "amply served" by the extensive information in relation to the scheme which is already on public record. While I do not agree with the IMO that there is "little if any public interest in the release" of the record at issue, I do not consider that it is open to this Office to make a finding in this case that public interest grounds exist which would justify a breach of the duty of confidence. Accordingly, I find that the HSE was justified in refusing to release Record 7 under section 26(1)(b) of the FOI Act.

Existence of other records
As HSE has indicated that it could not locate any further records relating to the applicant's request, section 10(1)(a) of the FOI Act is relevant. That section provides that a request for access to a record may be refused 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. 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. The Office's understanding of its role in such cases was approved by Quirke J in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner [2002] No. 18 MCA.

The records sought in this case all relate to payments to the IMO from the HSE. The HSE has stated that no further records exist relating to the applicant's request. In respect of the payment made in 2005, the HSE stated that invoices are normally retained for seven years, in line with the records management practices in place. It stated that the only record of this payment found, after extensive searches took place, was the bank statement for November 2005. Essentially, the HSE's position is that all records which can be located relating to the applicant's request have been identified and released to her.

Having considered the submissions of both parties and the measures taken to locate further records, I am satisfied that the HSE has taken reasonable steps to locate all relevant records and that it was justified in deciding that no further relevant records exist or can be found. I find, therefore, that section 10(1)(a) of the FOI Act applies.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse to release the relevant information contained in Record 7 under section 26(1)(b) of the FOI Act. I also affirm the HSE's decision to refuse to release further records on the grounds that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

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