Case Number: 160219

Whether the HSE was justified in its decision under the FOI Act to refuse access to a report on orthodontic services on the basis of section 30 of the FOI Act.

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

On 15 February 2016, the applicant made an FOI request to the HSE seeking access to a report by two UK professors following an investigation into claims that children had been "damaged" in the Irish public orthodontic services.

The HSE, in its decision of 23 February 2016, refused access to the report on the basis of section 30 of the FOI Act. The applicant requested an internal review decision on 21 March 2016 and the HSE issued a late decision on 3 May 2016 affirming the original decision.

The applicant applied to this Office for a review of the HSE's decision on 16 May 2016. Submissions have been received from the applicant and the HSE and I consider that the review should now be finalised by way of a formal, binding decision. In conducting my review, I have had regard to submissions from the applicant and the HSE and correspondence between the applicant and the HSE. I have also had regard to the record the subject of this review and to the provisions of the FOI Act.

Scope of the Review

This review is concerned solely with whether the HSE was justified in its decision to refuse access to the orthodontic investigation report on the basis of section 30 of the FOI Act. While two records are listed in the Schedule, effectively the one report is presented in two parts.
The applicant submits that the HSE's Internal Reviewer was involved in the issue the subject of the report and that he is worried about a lack of independence and a conflict of interest in relation to the handling of the FOI request. While I appreciate the applicant's apprehension, I have no evidence that the decisions made by HSE staff were made otherwise than in accordance with the FOI Act. The burden of proof of satisfying the Commissioner that refusal of the request is justified falls on the FOI body (section 22 (12) (b) refers). In any case, I consider that it is to be expected that HSE managers would sometimes have to conduct internal reviews involving records of matters in which they had some prior involvement since the Act requires that internal review decisions must be made by a staff member "of higher rank" than the original decision maker.

Analysis and Findings

Section 30
The HSE relied on section 30 (a discretionary exemption) to refuse access to the requested report. Subsection (1)(a) provides that a body may refuse to grant a request if access to the records could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Section 30(1) is subject to a public interest balancing test in subsection (2).

In arriving at a decision to claim an exemption under section 30(1)(a), a 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. Thus, I do not have to be satisfied that the harm envisaged will definitely occur.

According to the applicant, a review body was set up in 2005 to advise the HSE on the implementation of recommendations made by the Joint Oireachtas Committee on Health and Children. He states that a further investigation took place in November/December 2014 carried out by two UK professors in Orthodontics and that the report he is requesting was submitted to the HSE early in 2015.

The HSE says that the version of the report prepared by the external reviewers is not yet finalised for publication. It contends that the release of any of the documentation at this time could reasonably be expected to impair "the fairness of due process". The HSE provided this Office with legal advice which it has received on the publication of the report. It states that it has written to the authors to clarify a number of matters including confirmation that due processes have been adhered to. It submits that its legal advisors raised issues about elements of the report. As regards the link between granting access to the report and the harms envisaged, the HSE's position is that its legal advice states that the necessary insurance indemnity in respect of any proceedings arising from the findings will not apply unless legal approval has been given for the process used. As a condition of cover, the insurers require the HSE to seek and receive approval from its legal advisors regarding the content of any written report or correspondence prior to its release to any third party. Apparently, it is standard practice that professional indemnity insurance is provided to protect external reviewers from personal liability in the course of their work. In this case, the HSE says that approval was not forthcoming because of possible procedural deficiencies in the process at this time. If a report was released in circumstances where the HSE could not meet the conditions of professional indemnity cover, I accept that professionals from outside the HSE would be less willing to act as external reviewers which could prejudice the effectiveness of future investigations or inquiries.

The HSE says that because of the difficulty outlined above, the report is " not ready for release". It states that claims that children had been "damaged" in the public orthodontic services are still being examined in accordance with its normal "look back" procedures and that this review is overseen by a multi-disciplinary team with the benefit of the external orthodontic expertise. It submits that it intends to publish the details as soon as the examination is concluded and to include the input of the external orthodontists (the subject of this request) possibly in redacted form. Thus, there are follow up actions which might be affected by release of the report to the world at large under FOI. Having considered the content of the record, I am of the view that, given the legal advice that the findings are unreliable at this time, release would be likely to negatively impact on further investigation of the complaint, by exacerbating the tensions that already exist between the various parties. In my opinion, the release of the record at this stage would result in a risk of prejudice to the effectiveness of the review which the HSE has advised is currently ongoing. While it is unfortunate that the report furnished in 2015 has not yet been deemed ready for publication, the conduct of the investigation itself is not a matter for consideration by of this Office. I find that the HSE has justified its refusal of access under section 30(1)(a) of the FOI Act.

The Public Interest
Section 30(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 HSE says that there is a public interest in protecting individuals' rights to privacy and in public bodies being able to perform their functions effectively. In regard to the privacy argument, I note that the decision makers did not rely on section 37 of the Act to refuse access on the basis that the record contained the personal information of individuals other than the requester. Although I make no finding on this, it seems to me that, having regard to the definition of personal information in the FOI Act and the very strong public interest in protecting the privacy of individuals - including the privacy of public servants in some circumstances - the record might fall to be protected from release under section 37 of the FOI Act.

I believe that there is a strong public interest in openness and transparency regarding the manner in which the HSE carries out its functions, including in relation to health and social services it provides and the manner in which it investigates concerns regarding such services. In this case, however, the HSE has provided evidence that its legal advisors do not consider the process as documented in the report to be adequate to finalise the report. It further points to the ongoing work in reviewing patient charts and taking follow up action. It says that the recommendations in the report are being dealt with as part of this process. This serves the public interest in openness and actions towards improvement of the service being implemented to some extent.

I am satisfied that, on balance, it would not serve the public interest in this instance to release the record under FOI, given the HSE's legal advice that the version of the report that makes findings about individuals appears to have been prepared without due regard for fair procedures. I believe there is a clear public interest in ensuring the efficacy and accuracy of investigations into the conduct of the HSE, and for the reasons already stated, I consider that the release of the records would be likely to impede this aim.

As I have found that the HSE was justified in refusing access to the record under section 30(1)(a), I do not consider it necessary to examine the application of section 30(1)(b) and section 30(1)(c).

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the HSE to refuse access to the withheld records identified above on the basis of section 30(1)(a) of the FOI Act.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator