Case Number: 170092

Whether the HSE was justified in its decision to refuse access to certain records relating to the applicants under sections 15(1)(a) and 31(1)(a) 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 22 August 2016, the applicants made an FOI request to the HSE for the following records:

1. All correspondence, emails and documentation sent by the applicants to named HSE staff members;
2. All correspondence, emails and documentation sent between the named HSE staff members which relate to or refer to the applicants;
3. All complaints submitted by the applicants relating to public health nurses under the Your Service, Your Say complaints policy;
4. All supporting documents which show that the applicants were verbally abusive towards public health nurses;
5. All supporting documents which show that the applicants submitted written abuse to public health nurses;
6. All correspondence, emails and documentation concerning a letter sent by the applicants to a named HSE staff member on 26 July 2016;
7. All correspondence, emails and documentation concerning a letter sent by a named HSE staff member to the applicants on 8 August 2016.

On 20 September 2016, the HSE issued its decision granting the applicants' request in part. On 26 September 2016, the applicants requested an internal review of the HSE's decision. The applicants argued that the HSE ought to hold additional relevant records. On 11 November 2016, the HSE varied its original decision and released a number of additional records to the applicants. The HSE provided the applicants with a schedule listing 36 pages of records considered to be within the scope of their request. In summary, the outcome was:-

• Pages 1-22 - Correspondence from the applicants to HSE staff was released;
• Pages 23-24 - Correspondence between HSE staff was refused under section 37(1) of the Act;
• Pages 25-32 - Correspondence between the HSE and its Legal Advisor and related correspondence was refused under sections 31(1)(a) and/or 37(1) of the Act;
• Pages 33-36 Correspondence between the applicants and a HSE staff member was released.

On 12 December 2016, the applicants applied to this Office for a review of the HSE's decision. Both the applicants and the HSE were invited to make submissions in the course of this review. In its submissions, the HSE stated that following further consideration, it had decided to release records 23 to 24 to the applicants with the exception of a private email address contained in both records. The applicants have confirmed that they are agreeable to this private email address being withheld.

I have decided to conclude this review by issuing a formal binding decision. In conducting this review, I have had regard to correspondence between the applicants and the HSE, to correspondence between the HSE and this Office, to correspondence between the applicants and this Office, to the contents of the records at issue and to the provisions of the FOI Act.

Scope of Review

The scope of this review is confined to the following issues:

• Whether the HSE has justified its decision that section 15(1)(a) of the FOI Act applies to the applicants' request as no further records exist or can be found after all reasonable steps to locate them have been taken;
• Whether the HSE has justified its decision to refuse access to the records 25 to 32 on the basis of sections 31(1)(a) and/or 37(1) of the Act.

Preliminary Matters

Section 13(4) of the FOI Act provides that the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner, (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act). While the applicants clearly are in dispute with the HSE on a number of issues, my review is not concerned with their complaints as to the management of services provided by the HSE or the actions of its staff and is confined to the question of rights of access under the FOI Act.

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. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited. The release of a record under the FOI Act is considered, effectively, as release to the world at large.

In their application to this Office, the applicants complain about a number of issues concerning the HSE's handling of their FOI request and about the adequacy of the HSE's practices and procedures for the purposes of compliance with the FOI Act. An assessment of the HSE's practice and procedures, if it were deemed necessary, would have to be carried out under section 44 of the FOI Act, while this review under section 22 of the FOI Act, must be confined to reviewing whether the HSE has justified its refusal of the request. The Commissioner does not intend to carry out an investigation under section 44 at this time.

Analysis and Findings

Section 15(1)(a) - "Search" issues
Section 15(1)(a) provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision than no further records exist is 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 was reasonable. The Commissioner's understanding of his 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 M.C.A.] available on this Office's website at (www.oic.ie).

According to the applicants, the full spectrum of documents have not been located, particularly those in relation to a named Public Health Nurse. They state that part three of their request was for all complaints submitted by them under the HSE complaints policy "Your Service, Your Say." According to the applicants, all complaints under this policy should be logged, therefore the HSE should have a copy of any such complaints. The applicants state that on 20 July 2016, a HSE General Manager wrote to them, stating that it is unacceptable that any staff would be subject to verbal or written abuse. They state that they requested records in relation to any such verbal or written abuse, however they were not provided with any such records. Finally, the applicants state that they were not provided with a copy of a letter they sent to a HSE General Manager on 25 August 2016.

According to the HSE, it does not hold any further relevant records in relation to the Public Health Nurse identified by the applicants. The HSE states that the applicants took a fitness to practice case in relation to this Nurse to the Nursing and Midwifery Board of Ireland (NMBI). However, it states that correspondence in relation to that case would be held by the NMBI and not by the HSE. The HSE states that record one is a letter from the applicants to a former HSE General Manager. The applicants write the following at page 3: "We wish to state that we have not made any complaints to the HSE regarding the public health nurses, any statements implying this or suggesting such are both false and misleading." According to the HSE, this letter confirms that the applicants did not make any complaints relating to public health nurses under the "Your Service Your Say" complaints policy.

The HSE argues that the letters sent by the applicants to various public health nurses (records 12-22) can be interpreted as quite abusive and these records are relevant to parts 4 and 5 of the request. The HSE states that the General Managers Office holds a post log of correspondence received into that Office. This post log does not include any correspondence received from the applicants on 25 August 2016.

The HSE states that, following queries from this Office, the Public Health Nursing Department was requested to conduct further searches for records falling within the scope of the applicants' request. It says that searches were made of manual files and of the PCs of the public health nurses named by the applicants. The HSE states that the former Community Services Manager was also asked to conduct similar searches of records in that office. According to the HSE, other public Health Nursing client files active during a similar period were examined as were files kept in close proximity to the applicants' file to establish if correspondence was misfiled. However, no further records were located.

I note that the only record specifically identified by the applicants, which has not been released, is a letter written by the applicants to the General Manager on 25 August 2016. I accept that the HSE took reasonable steps to try and locate this letter. Having regard to the detailed replies provided by the HSE in response to queries from this Office, I am satisfied that the HSE has taken reasonable steps to locate relevant records. I find, therefore, that section 15(1)(a) of the Act applies to the applicants' request insofar as it relates to any further records which in the applicants' view the HSE ought to hold.

Section 31(1)(a) - Legal Professional Privilege
The HSE argues that records 25-32 are exempt under section 31(1)(a) of the Act. Section 31(1)(a) provides that a head shall refuse to grant an FOI request if the record concerned would be exempt from production in proceedings in a court on the ground of Legal Professional Privilege (LPP). LPP enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal advisor for the purpose of obtaining and/or giving legal advice (advice privilege), and
• confidential communications made between the client and a professional legal advisor or the professional legal advisor 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)

Section 31(1)(a) does not require the consideration of the public interest.

The HSE submits that records 25-32 contain legal advice or were created as part of a continuum of communication between the HSE and its legal advisors. The HSE argues that correspondence from the applicants implies that they are contemplating legal proceedings. It states that this legal advice was given in contemplation of litigation and the records are also exempt under litigation privilege.

Advice Privilege
Advice privilege attaches to confidential communications made between the client and his/her professional legal advisor in a situation where the legal advisor is acting in a professional capacity. The concept of "once privileged always privileged" applies where privilege is based on advice privilege, and thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. In case 020281 (Mr. X and the Department of Education and Science),the former Commissioner considered records which may not, on an individual basis, satisfy the criteria for the attraction of LPP but which form part of a series of communications regarding the giving or receiving of legal advice. She referred to the following comments by Mr. Adrian Keane in "The Modern Law of Evidence" [(4th Ed.), Butterworths, 1996, at pp. 521-522]:

"Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice. In Balabel v Air India [(1988) Ch. 317; [1988] 2 All E.R.., 246, CA.] ...[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings... There will be a continuum of communications and meetings between the solicitor and client... Where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach."

The Commissioner takes the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.

Pages 25 to 26 and 29 to 30 contain legal advice provided in confidence by an external Solicitor to the HSE. I am satisfied that these records attract advice privilege and are exempt under section 31(1)(a) of the Act. Pages 27 to 28 contain emails between HSE staff that disclose details of advice received from the Solicitor and pages 30-31 contain a letter prepared by the Solicitor for the consideration of the HSE. I accept that these records form part of a continuum of correspondence that resulted from an original request for legal advice. I find, therefore, that these records are exempt under section 31(1)(a) of the Act.

As I have found that records 25-32 are exempt under section 31(1)(a) of the Act, it is not necessary to make findings on the application of section 37(1) to these records. However, were I required to consider the matter, I can say that parts of the records contain personal information relating to individuals other the applicants.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE's decision. I find that that section 15(1)(a) of the FOI Act applies to the applicants' request insofar as it relates to additional records. I find that section 31(1)(a) of the FOI Act applies to records 25-32.

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