Whether the Hospital was justified in its decision to refuse access to information relating to the care and treatment of the applicant's child on the basis that sections 30, 31, 35, 36 and 37 of the FOI Act applied

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

In his FOI request of 28 December 2014, the applicant sought access to information relating to the care and treatment of (the patient) in the Hospital, and to communications regarding arrangements, including funding for (the patient's) care in the Hospital and elsewhere. In its original decisions of 29 January 2015 and 5 March 2015, the Hospital granted access to the patient's healthcare records. Access to other relevant records or parts of records was refused on the basis that sections 30, 31, 35, 36 and 37 of the FOI Act applied. The applicant submitted an internal review request on 27 March 2015. The Hospital's internal review decision of 20 April 2015 affirmed its original decision. The applicant submitted an application for review to this Office on 23 April 2015. Following receipt of consent from the applicant's wife, some further information was released on 30 April 2015.

In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the Hospital, to the content of the records and to the provisions of the FOI Acts. I have decided to conclude the review by making a formal, binding decision.

Scope of Review

The review relates solely to whether the decision of the Hospital to refuse access to the information sought was justified. Any records or parts of records which have been released are no longer within the scope of this review. Having examined the records identified by the Hospital, Ms. Brenda Lynch, Investigator, was of the view that a small number of these records were not relevant to the review, as they related to more general issues, and not to the care of the patient. I agree with Ms. Lynch and these records [CEO File 1 of 2 - pages 31-33, 39-41, 56-58, 66-68, 109, 115, 123-125 and CEO file 2 of 2 - pages 113-114, 141 and 138-140] have been excluded from the scope of the review. As all records which were withheld on the basis that section 35 applied have now been released, it is not necessary for me to deal with this exemption. For the avoidance of doubt, the following records, or parts thereof, to which access has been refused are in the scope of this review:

CEO File 1 of 2 - pages 1, 2, 22-87, 90-106, 109-112, 115-127, 129-136, 138-157, 181-189
CEO File 2 of 2 - pages 1-7, 12-30, 32-63, 66-176
Clinic File 1 of 2 - pages 73-74
Clinic File 2 of 2 - pages 46-47, 211-212, 286-288
Senior [..] Social Worker file pages 54-55.

Preliminary Matters

Section 18
I should explain the approach to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading.

Section 22
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

Section 25(3)
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the records is limited. In this case, also, the level of detail which I can give in my analysis and findings is also extremely limited due to the circumstances of the records' creation and their inherent sensitivity.

The release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Analysis and Findings

Section 31(1)(a) - Legal Professional Privilege
The Hospital refused access to information in CEO file 2 of 2 - pages 15-17, 33-34 and 112 on the basis that section 31(1)(a) applies. Section 31(1)(a) provides that : "A head shall refuse to grant an FOI request if the record concerned - (a) would be exempt from production in proceedings in a court on the ground of legal professional privilege". I accept that legal professional privilege enables the client to maintain 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).
Unlike most other provisions of the Act, section 31(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest. Having examined these records, I am satisfied that they are communications between a client and its legal adviser for the purpose of obtaining legal advice, or are internal documents which disclose legal advice received, and that, therefore, the first limb of legal professional privilege (advice privilege) is satisfied. I find that the records are exempt under section 31(1)(a).

Section 36 - Commercially Sensitive Information

The Hospital refused access to the following records on the basis that they contained commercially sensitive information and therefore, sections 36(1)(a), 36(1)(b) and 36(1)(c) applied:
CEO File 1 of 2 - pages 47-55, 82-87, 101-106, 122 & 131-136 (Note: pages 101-106 & 131-136 are copies of 82-87)
CEO File 2 of 2 - pages 2-5
The records at issue can be described as terms and conditions and fee structure (terms) of a third party healthcare facility outside this jurisdiction, and invoices from that facility for the care and treatment of the patient. On the basis that the contents of these records related to a third party, this Office consulted with the third party and its views are taken into account in my consideration of this exemption.
Section 36 (1) provides that:

" Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains
(a) trade secrets of a person other than the requester concerned
(b) 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, or
(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates."

Section 36(1)(a) is not relevant in this case.

Section 36(1)(b) protects 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. The harm test in the first part of subsection (1)(b) is that disclosure of the information "could reasonably be expected to result in material financial loss or gain". The Commissioner takes the view that the test to be applied in this regard is not concerned with the question of probabilities or possibilities, but with whether the decision maker's expectation is reasonable. The nature of the harm envisaged and a basis for a claim that such harm could reasonably be expected to result from disclosure of the particular information in the record(s) at issue should be shown by an FOI body or a third party relying on this provision in section 36(1)(b).

In case number 98049 (on www.oic.ie), the former Commissioner, the late Mr. Kevin Murphy, set out his view on the standard of proof needed to meet the test for the second part of this section to apply:

"However, I am conscious that the only requirement which has to be met in this case is that disclosure "could prejudice the competitive position" of the person concerned. In my view the standard of proof necessary to meet this test is considerably lower than the standard required to meet the test of "might reasonably be expected to."

Section 36(1)(c) protects information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low in the sense that the test is not whether prejudice or harm is certain to materialise but whether it could do so. Having said that, I would expect that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and to explain how exactly the disclosure could prejudice the conduct or outcome of such negotiations.

The Hospital argued that the information was furnished to it in the context of securing an appropriate clinical facility for the patient and that release of the information could prejudice the competitiveness and financial interests of the third party. It identified a need for external/private agencies to be able to discuss, negotiate and conduct commercial transactions without fear of suffering commercially as a result. The Investigator put it to the Hospital and the third party that it was not clear that the harm envisaged would arise from the release of this information, depending on the circumstances in which the terms are made available by the third party to anyone making enquiries and the basis on which the fees to be charged are determined.

In its submission, the third party stated that the terms document is an internal document of the facility and is only shared in relation to specific referrals where the relevance of the facility's services to the circumstances of the case has been established. Having considered the submissions and the content of the records, I cannot see how the release of this record, apart from the actual amounts on the first page, could give rise to the harm envisaged by sections 36(1)(b) and 36(1)(c). I find therefore, that section 36(1)(b) and section 36(1)(c) do not apply to the terms document, apart from the actual fees on the first page, and that these should be released with the amounts redacted (i.e. CEO File 1 of 2 pages 82-87, 101-106 and 131-136).
In relation to the amounts on the first page of the terms document and the invoices, the general fee structure, but not actual rates, of the third party facility is available on its website. However, the third party informed this Office that the commercial arrangements it makes are determined by taking into account the circumstances of each particular case and disclosure of this information would reveal the specific commercial arrangements for this particular case. It also stated its view that release of this financial information represents a real risk of influencing users of its service and could lead to difficulties for it in negotiating commercial arrangements in the future. It is clear that the third party engages in negotiations on an ongoing basis in this regard.

Having considered the submissions of the Hospital and the third party and examined the records at issue, I find that section 36(1)(c) applies to the actual amounts on CEO File 1 of 2 pages 82, 101 and 131 and to the invoices (CEO File 1 of 2 pages 47-55, 122 and CEO File 2 of 2 pages 2-5). Having found that section 36(1)(c) applies, it is not necessary to consider the application of section 36(1)(b) to these parts of the records.

Section 36 (2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arise in this case.

Having found that section 36(1)(c) applies, section 36(3) of the FOI Act requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the request. The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies as to how they conduct their business. The Commissioner takes the view that there is a strong public interest in openness and accountability in the use of public funds. However, he also accepts that there is a legitimate public interest in entities being able to conduct commercial transactions with FOI bodies without fear of suffering commercially as a result. In this instance, the information contains details of expenditure invoiced to an FOI body, other than the Hospital. It is clear from the information at issue here that it reflects only part of the information on expenditure of public monies in this case. It is also clear that the arrangements put in place are unique to the circumstances of this case. I note that release of this information in full would reveal quite a lot about the nature and extent of the care provided to the patient.

Having considered the matter, I find that, in the particular circumstances of this case, on balance, the public interest would not be better served by the release of the information to which section 36(1)(c) applies.

Section 37 - Personal Information
The Hospital refused access to the following records, in full or in part, on the basis that they contained personal information of persons other than the requester or his child:
CEO File 1 of 2 - pages 69-71, 154
CEO File 2 of 2 - pages 6, 7, 88 - 90, 99, 112, 117-118, 137 & 142-144

Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information.

The FOI Act defines the term "personal information" as information about an identifiable individual that either (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 an FOI body on the understanding that it would be treated by the body as confidential. The definition also contains a list of 14 specific types of information including information relating to the medical history of an individual.

Having examined the records, I am satisfied that the information at issue is personal information in that it relates to the medical history of individuals other than the applicant or his child. I find that section 37(1) applies.

There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(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 their information; (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 37(2) does not apply to the withheld information.

I turn now to section 37(5) which also provides for exceptions to the section 37(1) exemption. I see no basis for finding that the grant of the request would benefit the individuals to whom the information relates and I am satisfied that section 37(5)(b) does not apply in this case.

Section 37(5)(a) - Public Interest
Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. In relation to the question of where the public interest lies, I have had regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"]. In the Rotunda Hospital case, the Supreme Court drew a distinction between private interests and public interests. The comments of Fennelly J. indicate that a request made "by a private individual for a private purpose" is not a request "made in the public interest". Moreover, in the opinion of Macken J., the public interest would require "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law".

The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. The FOI Act further recognises the public interest in persons being able to exercise their rights under the FOI Act, although this alone would not be sufficient, in my view, to warrant the breach of an individual's right to privacy. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - in both in the language of section 37 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 also 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 find that, in the circumstances of this case, the right to privacy of the individuals whose personal information is in the records outweighs the public interest in granting the applicant's request.

In summary, I find that section 37(1) applies and that none of the exceptions under section 37 apply to the information.

Section 30(1)(b) and (c) - Functions and negotiations
Access to the remaining records was refused on the basis that section 30(1)(b) and (c) applied. I note that there is quite a lot of duplication of content in the records with multiple email strings and attachments to emails being circulated and recirculated. So, while for the purposes of FOI, each email is a separate record, the extent to which there is different information in each record is limited. For example, the contents of the refused records on Clinic File 2 of 2 are replicated on the CEO files.

Section 30(1)(c) provides as follows:

"30 (1) A head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to ...

(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 an FOI body."

In order for this exemption to apply, the relevant negotiations should be identified. As this exemption does not contain a harm test, it is sufficient that access to the record(s) concerned could reasonably be expected to disclose negotiating positions. Records relating to past, present and future negotiations may be protected. In its submission to this Office, the Hospital stated that significant communications took place between it and other health agencies and facilities in regard to arranging suitable care for the patient. It went on to state that significant negotiations took place between it and a number of areas of the HSE with regard to the funding required for the care of the patient. Having examined the records at issue, I am satisfied that the Hospital has identified relevant negotiations and that the release of the records would disclose the positions taken by both the Hospital and other FOI bodies for the purposes of negotiations. The wording of section 30(1)(c) extends to negotiations carried out by an FOI body, other than the body making the FOI decision. I find that section 30(1)(c) applies to those records to which access has been refused on this basis.

Section 30(2) requires me to consider whether, on balance, the public interest would be better served by granting than by refusing access to the records at issue. As stated above, there is no harm test in Section 30(1)(c). However, in considering whether the public interest would be better served by granting than by refusing the request, the question of whether a harm might arise from release may be taken into account. In this case, the Hospital also stated in its submission that release of these records could prejudice the capacity of the Hospital to negotiate on behalf of any other patient or family with the HSE or other government agencies in the future. It is also of the view that release of the information could have a significant adverse affect on its performance of many of its functions in relation to the management of childcare circumstances in the future.

The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. The FOI Act further recognises the public interest in persons being able to exercise their rights under the FOI Act. However, where, as in this case, positions taken for the purposes of negotiations could reasonably be expected to prejudice current or future negotiations or cause some other harm, then this is a matter which must weigh heavily in the application of the public interest balancing test.

In the circumstances of this particular case and having examined the records at issue, I consider that the Hospital has made strong arguments as to why the public interest would not be better served by the release of this information. I find that the public interest would not be better served by granting this request.

As I have found that all the information for which section 30(1)(b) was claimed to be exempt under section 30(1)(c), it is not necessary for me to deal with the application of this exemption.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Hospital. I affirm the decision of the Hospital and find that it was justified in its refusal of certain records, on the basis that:
Section 31(1)(a) applies to CEO file 2 of 2 - pages 15-17, 33-34 and 112;
Section 37 applies to CEO File 1 of 2 - pages 69-71, 154 and to CEO File 2 of 2 - pages 6, 7, 88 - 90, 99, 112, 117-118, 137 & 142-144;
Section 36(1)(c) applies to the amounts on CEO File 1 of 2 - pages 82, 101 and 131 and to CEO File 1 of 2 pages 47-55, 122 and CEO File 2 of 2 pages 2-5.
Section 30(1)(c) applies to all remaining information which has been refused, with the exception of pages 82-87, 101-106 and 131-136.

I annul the decision of the Hospital and find that no exemption applies to CEO File 1 of 2 pages 82-87, 101-106 and 131-136, apart from the amounts on pages 82, 101 and 131, and I direct the release of this information.

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator