Whether the Department was justified in refusing to fully grant the applicant's request for access to records concerning the report entitled "Independent Clinical Review of Provision of a Second Catheterisation Laboratory at University Hospital Waterford"

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 26 September 2016, the applicant made an FOI request for records, dating from 1 May 2016 to 15 July 2016, concerning the report entitled "Independent Clinical Review of Provision of a Second Catheterisation Laboratory at University Hospital Waterford" (to which I will refer as the report, or the Herity review, as necessary). The Department did not reply within the statutory time frame, effectively refusing to grant the request. On 3 May 2017, the applicant sought an internal review. The Department's internal review decision of 26 May 2017 granted full and partial access to some of the 75 relevant records, and withheld the rest under various provisions of the FOI Act. On 9 June 2017, the applicant sought a review by this Office of the Department's decision.

During the review, the applicant agreed that certain records could be excluded from consideration, while the Department also agreed to release some of the remaining records in full or in part. 

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the Department, and the applicant. I have had regard also to the records considered by the Department and to the provisions of the FOI Act. 

Scope of the Review

Some of the records that were fully or partially withheld when the applicant made his application for review have been removed by him from the review, or released by the Department. Record 48 is a copy of record 28. Accordingly, and as the applicant knows, this review is confined to whether the Department has justified its refusal to grant full access to the remaining records to which it has fully or partially refused access (except for any phone numbers and email addresses contained in these records, which the applicant also excluded during the review):

Records 1; 2; 5; 8; 16b-16i; 21; 23; 28; and 35. 

Findings

Section 22(12)(b) places the onus on the Department to justify its refusal to grant access to the records. I appreciate that the background and reaction to the Herity review raised difficult issues and that the Department is anxious to avoid further divisiveness. However, this of itself would not be enough to justify a refusal to grant access to records under FOI. 

Withheld Information - Outside Scope of Request and Review

Record 21
Record 21 is described in the Department's schedule as an email regarding speaking points. I am satisfied that this record concerns various matters other than the Herity review, and that the Department has released all information within the scope of the request from it so that I need not consider it further. 

Record 35
Record 35 is an email to the independent reviewer (Dr Niall Herity). It is described in the schedule as an email and attachment regarding "ACS protocol". I am satisfied that all details in it regarding that protocol have been released. However, three sentences have been withheld on the basis that they do not fall within the scope of the request. 

The Department's position is that the redacted information concerns a clarification, requested in passing by Dr Herity following his visit to University Hospital Waterford. It says that during his visit, he received information about various matters, and that the clarification was sought to determine whether that information was of any relevance to his review. It says the information does not concern the catheterisation laboratory (cath lab) service and did not form part of the Herity review. 

As I understand it, Dr Herity's only contacts with the Department concerned his review. He clearly asked for and considered the information he was given, even if he ultimately considered it irrelevant. While the details may not add anything to the understanding of the substance or outcome of the Herity review, I consider them to be covered by the request. However, my view is that it is not appropriate to direct their release without the Department having considered whether they are exempt under the FOI Act. Accordingly, I am annulling the Department's refusal of access to the details concerned, and remitting the matter for fresh consideration and a new decision under the FOI Act. It remains open to the Department to contact the applicant to establish whether he wishes to have access to the information concerned. 

Section 29 - Deliberations of FOI bodies

The Commissioner's Approach to Section 29
Section 29 is a discretionary exemption, which provides that an FOI request may be refused if (a) it contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest. 

The requirements of sections 29(1)(a) and (b) are independent, and the fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to the satisfaction of the Commissioner that both requirements have been met.

A deliberative process involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action. 

The public interest test in section 29(1)(b) differs from the public interest test found in other exemptions under the FOI Act. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. To avail of section 29, the public body must be of the opinion that releasing the records would be against the public interest. In my view, this exemption tends more strongly towards release of records, and public bodies have a higher hurdle to overcome in demonstrating that it applies. 

Therefore, public bodies must show, to this Office's satisfaction, that release of the material at issue would be contrary to the public interest. Generally speaking, this requires a body to identify a specific harm to the public interest flowing from release. While there is nothing in the exemption itself which requires the deliberative process to be ongoing, the question of whether the process is ongoing or at an end may be relevant. Furthermore, section 29 specifically requires consideration of whether the requester would, by the release of the record(s), become aware of a significant decision that the an FOI body proposes to make. 

My consideration of section 29(1)(b) in this case has had particular regard to section 11(3) of the FOI Act. This provision requires FOI bodies, when performing any function under the Act, to "have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principle of transparency in government and public affairs"; to the need "to strengthen the accountability and improve the quality of decision making of public bodies"; and "the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies". The above seem to me to reflect the overall public interest of ensuring openness and accountability, as recognised by the FOI Act itself. 

I have also had regard to section 11(7)(b), which provides that "[n]othing in this section shall be construed as applying the right of access to an exempt record ... where the exemption operates by virtue of the exercise of a discretion that requires the weighing of the public interest, if the factors in favour of refusal outweigh those in favour of release."

Records 5 (Paragraph 5 of Appendix 1) and 28
The Department describes record 28, in particular, as "a point in time collation and summation of data and narrative which sets out the HSE's interpretation of same at a point in time for the purposes of the Herity review". However, it says that the report also relates to cardiac care centres other than Waterford and will be relevant to the full national review of PCI/PPCI (Primary Percutaneous Coronary Intervention) services that was announced by the Government following publication of the Herity report in September 2016. It also says that the details it withheld from paragraph 5 of Appendix 1 to Record 5 will also be relevant to the national PPCI review.  

I understand that, in June and July 2017, the Minister publicly confirmed that the review will proceed, and said he had asked the Department to make the necessary arrangements. The Department's submissions to this Office say that this national review is expected to start shortly. I accept that this is the case, notwithstanding that I have not been made aware of any further developments on the matter. 

I accept that these records were prepared for, and before the completion of, the Herity review and relate to the deliberative processes on the question of a second cath lab in Waterford. I also accept the Department's argument that they will be relevant to deliberations relating to the further national review. It is clear from the released part of record 5 and from other publicly available material that the Waterford cath lab element of a national review of PPCI services was brought forward so that, in line with a commitment in the Programme for Government, the Waterford review could be completed within six weeks. I accept that section 29(1)(a) applies. 

In considering section 29(1)(b), it has not been argued that the grant of access to the records could have any impact on the now concluded deliberations concerning the Herity review. Furthermore, I have no reason to accept that the grant of access to the records could result in the requester becoming aware of a significant decision that an FOI body proposes to make in circumstances where the national review has yet to commence.

The Department argues that the grant of access to the records "would have the potential to undermine the effectiveness of [the national] review." It says that the records will only form part of what will be considered in that review, and that the grant of access to them now will not provide the context in which they will be so considered. It says that release of record 28 in particular could create further discourse on the cath lab issue. The Department says that this discourse may make it difficult to secure the appointment of a reviewer, because they may consider the task to be too onerous in light of the nature of public discourse to date. It also says that granting access to the records could be seen as influencing, or being perceived as influencing, both the methodology chosen for the national review and its final outcome in advance of its completion. It says that release of the records could potentially damage the HSE's and/or the Department's relationship with stakeholders, including individual hospitals, that are key to the national review. It also maintains that record 28 in particular could disclose the HSE's position in terms of its interpretation of data at a point in time for the purposes of the national review.

The Department says that it would be irresponsible to release "incomplete and non-contextualised information" in advance of the national clinical review. I take it that it is concerned that the information might be misinterpreted in some way. However, the Commissioner does not generally accept that the mere fact that information in a record which is sought under the FOI Act may be misinterpreted by someone is a sufficient basis for refusing to grant access.

I accept that there is a public interest in the national review being conducted efficiently and without undue interference. This is not to say that informed comment amounts to undue interference, however. While I understand the Department's concern that the records will be read outside of the context of other material to be considered during the national review, this alone does not determine the matter. Furthermore, although record 28 is largely concerned with the interpretation of various data at a particular point in time in so far as cardiac services in Waterford are concerned, I accept that it could at least provide some insight into the HSE's position on the various matters set out in the report for the purposes of the national review.

On the other hand, and as already noted, the public interest test in section 29 weighs more strongly in favour of release of records than do the public interest tests in other FOI Act exemptions. Record 28, in particular, was prepared by a specialist division of the HSE. Considerable elements of it are based on statistics gathered from the HSE's HIPE (Hospital In-Patient Enquiry) system, various hospitals and other sources. The relevant excerpt of record 5 contains the view of a senior official in the health area. Granting access to them would undoubtedly serve the public interest in ensuring openness and accountability regarding the question of a second cath lab in Waterford. Furthermore, granting access to the records would disclose data and analysis relevant to the consideration of, and recommendations on the future of cardiac services. This would enable the public, clinicians and other stakeholders to contribute to and participate in that debate in a more informed manner than at present. While certain commentators may take issue with the content of these particular records, it is also relevant that the independent reviewer will have a wider range of material on which to also base their ultimate recommendations. 

In this particular case, having regard to the requirements of section 22(1)2(b), I do not consider the Department has justified its position that the grant of access to the records would be contrary to the public interest. I find that section 29(1)(b) does not apply. 

Section 29(2) - The Exceptions to Section 29(1)
Given my finding that the records are not exempt under section 29(1), there is no need for me to consider the provisions of section 29(2), which lists exceptions to the exemption. However, while the Department was invited to address section 29(2), which it is required to do if it is to meet the requirements of section 22(12)(b), its submissions did not do so. I will comment briefly on the most relevant provisions of section 29(2) for the sake of completeness. 

Section 29(2)(b) provides that section 29(1) does not apply if and in so far as the record contains factual information. Section 2 of the FOI Act defines "factual information" as "information of a statistical, financial, econometric or empirical nature, together with any analysis thereof". I am satisfied from examining it that substantial parts of record 28 are of a statistical nature. That information, and any analysis of it, would fall to be released further to section 29(2)(b), subject to consideration of the extent to which the report also contains analysis and conclusions drawn from any non-factual information and the extent to which directing access to the factual information would lead to the resulting copies of the records being misleading (section 18). I would consider large portions of the record to be factual and thus releasable further to section 29(2)(b).

Section 29(2)(e) essentially provides that section 29(1) cannot apply to the report of a specified expert unless the report is used or commissioned for the purposes of a decision of an FOI body made pursuant to any enactment or scheme. I have no reason to consider any decision on future PPCI services to be made pursuant to any enactment or scheme. Furthermore, record 28 can be seen as containing the opinions or advice of an expert. It is arguable that the author is "a scientific or technical expert" in the context of this particular record. 

Section 30(1)(a) (b) and (c) - Functions and Negotiations of FOI bodies

The Commissioner's Approach to the Provisions
Sections 30(1)(a), (b) and (c) are discretionary exemptions. 

Section 30(1)(a) provides that a request may be refused if granting it could, in the opinion of the head of the FOI body, 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. It envisages two potential types of "prejudice" or harm: (i) to the "effectiveness" of the tests, etc (i.e. the ability of the test, etc to lead to a result of some kind) or (ii) to the procedures or methods employed for the conduct of such tests, etc. Where an FOI body relies on section 30(1)(a), it should identify the potential harm that might arise from disclosure, show how the "prejudice" or harm might be caused, and consider the reasonableness of any expectation that the harm will occur.  

Section 30(1)(b) of the FOI Act provides for the refusal to grant access to a record if access to the record concerned could, in the opinion of the head, reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff). The Commissioner expects an FOI body relying on section 30(1)(b) to identify the potential harm to the performance by an FOI body of any of its functions relating to management that might arise from disclosure. Having identified that harm, it must consider the reasonableness of any expectation that the harm will occur, which must be of a "significant, adverse" nature (rather than, say, the "prejudice" standard contained in other FOI Act provisions). The FOI body should then explain how release of the particular record(s) could reasonably be expected to result in this significant adverse effect. 

Section 30(1)(c) of the FOI Act provides for the refusal to grant access to a record if access to the record concerned could, in the opinion of the head, 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 an FOI body. This exemption does not contain a harm test, but the level of harm that may result from release of the record may be relevant to the consideration of the public interest test at section 30(2). 

Section 30(2) provides that section 30(1) shall not apply where the public interest would, on balance, be better served by granting than by refusing to grant access to the requested record. 

Record 1
The Department has withheld cost estimates for equipment, a room and associated accommodation for a second cath lab in Waterford under section 30(1)(c). It says that if a decision is made to proceed with a second cath lab in Waterford at some point in the future, or to build a cath lab anywhere else, such a project would be subject to a public tendering process. It says that publishing details of its costs estimates would seriously undermine the negotiation position of another FOI body (the HSE) and its ability to achieve the most economically advantageous price and best value for money for the taxpayer. 

The Government has ruled out the building of a second cath lab in Waterford, further to the Herity review's recommendation to this effect. I do not consider it appropriate to withhold information under section 30(1)(c) based on a mere possibility that the present or a future Government might at some unspecified point make a different decision. Furthermore, the Department has not identified any negotiations or referred me to any proposals to build a cath lab in any other part of the country in the near future. In such circumstances, I do not accept that the details are exempt under section 30(1)(c). 

Record 8
The Department has withheld, under section 30(1)(b), details of certain administrative supports it says were provided to Dr Herity over and above normal arrangements to enable him to carry out his review in a short time frame. It says that release may result in it being expected to provide similar supports as standard for all such work, which would not be feasible and would impact on its management of future similar reviews, by leading to increased costs and administrative burdens on the Department.

The Department has not explained why it would be unable to manage the expectations of any other independent reviewers by, for instance, distinguishing the circumstances of the Herity review. Thus, I do not consider it to have explained why it considers that release of the details could have a significant, adverse effect on its management of future similar reviews or why its expectation of harm is reasonable. I do not accept that the details are exempt under section 30(1)(b). 

Record 23
The Department has withheld details, under sections 30(1)(b) and (c), concerning estimated costs and specific staffing proposals for the development of Emergency Endovascular Stroke services in Beaumont and Cork University Hospitals. It claims that release could affect the ability of HSE management to carry out core functions regarding the setting up and staffing of these units and disclose the position of management in relation to these matters.

The Department has not explained how the harms it has envisaged could result from release of the details concerned. For instance, information on the pay rates of medical staff is publicly available and the material already released includes the numbers identified as being required. I do not accept that sections 30(1)(b) and (c) apply to the information.

Records 5 and 28
Record 5 (Paragraph 4 of Appendix 1)
The Department has withheld details of cost and revenue estimates under section 30(1)(c), and relies on the arguments it made regarding record 1. Notwithstanding that the costs details are slightly more detailed than those in record 1, and that the revenues are broken down into two components, I direct that they be released for the same reasons I gave above regarding record 1. 

Also withheld is a reference to costs of a matter about which I cannot go into any detail due to the requirement that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. The Department says that release of the details concerned could affect negotiations on the matter in the future and impact on a particular management function of the HSE. Given the Government's position on the possibility of a second cath lab in Waterford, it is not clear why negotiations might be necessary and in any case, similar information is in the public domain. I do not accept that section 30(1)(b) applies to the information concerned. 

Record 5 (Paragraph 5 of Appendix 1) and record 28
The Department's submission says that sections 30(1)(a), (b) and (c) apply to these records, based on the same arguments it made regarding the application of section 29 to them.

Even if I accept that the harm to the proposed review process envisaged by the Department could arise such that section 30(1)(a) applies to the records, I do not consider that its expectations of harm are reasonable. While release of the records could result in some commentators taking issue with their contents, the Department has not explained how this could reasonably be expected to prejudice the effectiveness of the review or the procedures or methods employed for its conduct. In particular, the records are only some of the inputs to which the reviewer will have regard, while granting access to them enables the public and others to contribute to at least some aspects of the debate on PPCI services in a more informed manner than at present.

It is not clear to me why the Department considers section 30(1)(b) to apply when its concerns are regarding the impact of release of the records on the national review. It has not identified the FOI body the performance of whose functions relating to management could be affected by the grant of access to the records (although I presume it to be the HSE), or identified the management functions concerned. Neither has it explained how those functions could be harmed, or why it has a reasonable expectation that the effect could be significant and adverse.

Finally, the Department has not explained why section 30(1)(c) applies to the records. Presuming that the HSE is again the relevant FOI body, it seems to me that any positions that it may take in the review are not necessarily the same as positions the HSE may take in any negotiations that may arise on completion of the review. Furthermore, the Department's concerns about the difficulties that may arise in appointing an independent reviewer, if access to the records is granted, do not provide me with a basis to find the records exempt under section 30(1)(c). 

I find the records not to be exempt under sections 30(1)(a), (b) or (c) of the FOI Act.

Sections 36(1)(b) and 36(1)(c) - Commercially Sensitive Information/Information Concerning Negotiations

The schedule to the Department's internal review decision cites section 36(1)(b) and/or (c) in relation to the details withheld from records 1, 5 and 48. While record 48 is a copy of record 28, the schedule did not list the latter as exempt under section 36. These provisions are, generally speaking, concerned with commercially sensitive information, and information whose disclosure could prejudice the conduct or outcome of negotiations of the person to whom the information relates. While this Office invited arguments from the Department on these provisions, its submissions did not refer to them. I find sections 36(1)(b) and (c) not to apply. 

Section 37(1) - Personal Information 

The Department's internal review schedule relied on section 37 in relation to a number of records. My decision considers only those records in respect of which it has made submissions to this Office on section 37. For the sake of completeness, however, I do not consider record 28 to contain any information that would identify particular patients and which would be exempt under section 37. 
Section 37(1) of the FOI Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. 
The Department has relied on section 37(1) in relation to records 16b to 16i. It has withheld record 16f in full. It has released or is willing to release details from the other records regarding whether the relevant patients were public or private patients, the "operator" (presumably the consultant who treated the patient) and very general information about the procedure performed on the patient. It is not willing to grant access to the rest of the details in these records (or any of record 16f) that comprise information such as patient chart numbers, the referring site (various hospitals), test or procedure dates, the specialty, whether the patient was an out patient or in patient, and more detailed descriptions of the procedures performed.

I am satisfied that the withheld information is concerned with procedures carried out on individual patients and is sensitive personal information. I also accept the Department's position that release of these details would lead to the patients concerned being identified. The applicant has not made any arguments to the contrary. I am satisfied that the information withheld from records 16b to 16i is personal information about third parties other than the applicant, and is exempt under section 37(1) of the FOI Act. 

Section 37(5) - The Public Interest
Subsection (1) is subject to other provisions of section 37 (sections 37(2) and (5)). In my view, only section 37(5)(a) is of relevance in this case. That section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld. 

There is a public interest in ensuring that the Department is open about, and can be held accountable for matters relating to the Herity review. In this regard, I accept a point made by the applicant when narrowing the scope of this review that "details of the procedures that were examined in the review are relevant as they fed into the overall conclusion." I also accept that there is a public interest in ensuring openness and accountability in the forthcoming national review. 

However, there is a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution), which is recognised by the language of section 37 and also by the Long Title to the FOI Act. This was also acknowledged by the applicant when narrowing the scope of this review, who said he was "quite conscious of the sensitivities regarding patient information and procedures [and] would not want a situation where people could be identified". 

When considering section 37(5)(a), privacy rights will 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. The public interest in favour of release has been met to an extent by the information released (or which the Department is willing to release) from records 16b to 16i, and by the release of record 16a in full. I accept that releasing the records would further enhance the public interests in openness and accountability set out above. However, the withheld records contain sensitive personal information. I accept that their release would result in a significant breach of the rights to privacy of the parties whose personal information would be released. 

On balance, I find that the weight of the public interest in granting access to the material the Department is not willing to release from records 16b to 16i is not such that it outweighs the public interest that the right to privacy of the third parties should be upheld.

Section 42(j) - Restriction of FOI Act

Section 42(j) provides that the FOI Act does not apply to a record given by an FOI body to a member of the Government for use by him or her for the purposes of any proceedings of the Houses of the Oireachtas.

The Department has relied on section 42(j) in relation to the remainder of record 2. The attachment is called a "Note for Leaders' Questions", and I accept it was for the Taoiseach's use for "the purposes of any proceedings" in the Dail i.e. Leaders' Questions. I have no reason to consider that the record was not provided to the Taoiseach. I find that it is outside of the scope of the FOI Act further to section 42(j).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department's decision. 

I affirm its refusal to grant access to the details withheld from Records 2, 16b to 16i, and 21. I annul its refusal to grant access to the details withheld from Record 35 and direct it to make a new decision on this in accordance with the requirements of the Act, subject to first establishing that the applicant wants to have access to the information concerned. I annul its refusal to grant access to the remainder of Records 1, 5, 8, 23, and 28, and I direct that access be granted to the  details concerned. 

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 by the requester 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
29 November 2017