12 December 2018

Whether the Department was justified in refusing to grant access to additional records requested by the applicant relating to the Surgical Symphysiotomy Ex Gratia Payment Scheme

Background

The subject matter of the request in this case is similar to the request made by the same applicant inCase 170398, available atwww.oic.ie.  As noted in the previous case, the Surgical Symphysiotomy Ex Gratia Payment Scheme (the Scheme) was established by the Government on 10 November 2014 to compensate women who had undergone a surgical symphysiotomy procedure. Judge Maureen Harding Clark was appointed independent judicial Assessor to the Scheme.  In October 2016, Judge Harding Clark submitted her Report on the Scheme to the Minister for Health.  The Report was subsequently published on 19 October 2016.

On 9 December 2016, the applicant made a request to the Department for the following information relating to the Scheme:

1. The contract, letter of appointment or similar record which contains the agreement between the Department and Maureen Harding Clark for the purposes of her appointment as the assessor in the "Surgical Symphysiotomy ex gratia payment scheme"
2. All information relating to the comparative study being undertaken in the radiology department of the Mater Hospital which is referred to at footnote 33 on page 28 of the Payment Scheme Report.

The applicant specified that the request extended to records held by Judge Harding Clark and the Scheme itself.

In a decision dated 9 January 2017, the Department granted access to a small number of records in full or in part, but it stated that it holds no records on behalf of Judge Harding Clark or on behalf of the Scheme itself.  On 20 January 2017, the applicant sought an internal review of the decision, challenging the redactions made to the records to which access had been granted in part but also arguing that an inadequate search had been carried out in relation to part 2 of the request.  The applicant argued, in essence, that Judge Harding Clark and the consultant qualified as "service providers" within the meaning of the FOI Act and that any records relating to the services provided under the Scheme are therefore deemed to be held by the Department.  The applicant also referred to email services provided to the Scheme by the Department as well as any emails or other correspondence and documents exchanged between the Department and the Assessor.

In a belated decision dated 5 April 2017, the Department granted access in full or in part to four additional records that had been found during its internal review.  Access to some but not all of the previously redacted material was also granted.  In relation to part 2 of the applicant's request, the Department noted that, as the Scheme had concluded at the time of the request, neither Judge Harding Clark nor the consultant was a service provider as defined in the FOI Act.  It acknowledged that it has a "number of mail boxes" for Judge Harding Clark and her support staff which may be relevant to the request.  However, in light of the stipulations of paragraph 46 of the agreement appointing Judge Harding Clark as Assessor to the Scheme and the nature of her appointment (i.e. to conduct an entirely independent review), the Department found that it does not hold the records despite the fact that they are within its possession.

On 27 September 2017, the applicant notified this Office that it was not satisfied with the Department's position and that the application for review, previously made on 16 March 2017, should proceed.  Submissions were subsequently made by the applicant and the Department on 25 October 2017 and 4 December 2017, respectively.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the submissions made by the applicant and the Department.  I note that, while the Department had claimed in its internal review decision that the redaction made from record 1 consisted of a home address, it conceded in its submission that it was in fact the address of the premises from which Scheme operated.  I further note that the address was in fact disclosed by the partial release of record 2.  In its submission, the Department stated that it now has no issue with releasing record 1 in full.  The Department also subsequently agreed to release record 4 in full.  I have otherwise decided to conclude this review by way of a formal, binding decision.

Scope of the Review

In Case 170398, it was established that the study referenced in the footnote on page 28 of the Report is the subject of Appendix 1 of the Report, entitled "Symphysiotomy & Pubiotomy Review - An Imaging Perspective", written by the consultant from the Mater Hospital who assisted Judge Harding Clark in her role as Assessor to the Scheme:

https://health.gov.ie/blog/publications/the-surgical-symphysiotomy-ex-gratia-payment-scheme-report/.  In an email dated 14 November 2017, the applicant confirmed that this is the study to which part 2 of the request refers.  The applicant also clarified that no personal information of any of the applicants to the Scheme is sought.  Accordingly, my review in this case is concerned solely with the question of whether the Department was justified in refusing access in part to records 2 and 8 as well to any additional records relating to Appendix 1 of the Report apart from the personal information of the applicants to the Scheme.

Analysis and Findings

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."  Adopting the numbering system used by the Department in this case, I note that partial access has been refused to records 2 and 8 under sections 31(1)(a) and 37(1) of the FOI Act, respectively.  In its submission to this Office, the Department has also indicated for the first time that it considers that the redacted part of record 2 falls within the ambit of section 42 of the FOI Act.

Record 2
Record 2 is a letter dated 17 November 2014 from an Assistant Secretary in the Department to Judge Harding Clark regarding the decision to indemnify her for her work as Assessor to the Scheme.  The letter, including an attachment, has been released subject to the redaction of information that restates advice provided by the Attorney General.

Section 31(1)(a)
Section 31(1)(a) is a mandatory exemption which protects records that would be exempt from production in proceedings in a court on the ground of legal professional privilege.  
Legal professional privilege enables a client to maintain the confidentiality of two types of communication:

(a) 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 

(b) 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).

In previous decisions, I have accepted that records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) where they form part of a continuum of correspondence that results from the original request for advice.  I have adopted this approach having regard 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; and 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."

In this case, the Department claims that the redacted part of record 2 qualifies for legal professional privilege on the basis that it contains legal advice provided by the Attorney General.  The Department acknowledges that the legal advice was "reproduced" for Judge Harding Clark, but it considers that the redaction nevertheless forms part of a continuum of correspondence such that privilege may attach.

However, as noted, record 2 is a letter to Judge Harding Clark communicating the advice in the context of an explanation of the decision to indemnify her for her work as Assessor to the Scheme.  The Department has not shown that Judge Harding Clark was a client of the Office of the Attorney General.  On the contrary, throughout this case, the Department has emphasised Judge Harding Clark's independent status.  The letter itself is not marked as confidential, nor is there any other indication to suggest that Judge Harding Clark was restricted from "reproducing" the advice further if she wished.  Moreover, the released part of the record, including the attachment, largely discloses the substance of the advice.  I therefore do not accept that any part of the letter, including the redacted information, qualifies as a "confidential communication" for the purposes of legal professional privilege.

Section 42

The Department has not identified which particular provision of section 42 that it regards as relevant to record 2, but presumably it is section 42(f).  Section 42(f) of the FOI Act provides that the Act does not apply to a record held or created by the Attorney General or the Director of Public Prosecutions or the Offices of the Attorney General or the Director of Public Prosecutions, other than a record relating to general administration.  However, as record 2 is not in fact a record held or created by the Attorney General or the Director of Public Prosecutions or the Offices of the Attorney General or the Director of Public Prosecutions, I find that section 42(f) does not apply.

Record 8 
The redaction made from record 8 consists of bank account details used for the purpose of making a payment to the consultant who assisted Judge Harding Clark.  It is questionable whether such details fall within the scope of the request, but in any event, I find that the Department's decision to refuse access to this part of record 8 was justified under section 37(1) of the FOI Act.  Section 37(1) is a mandatory exemption that applies where the grant of a request would involve the disclosure of personal information (including personal information relating to a deceased individual).  Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential.  The FOI Act details fourteen  specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including "(ii) information relating to the financial affairs of the individual".  I am satisfied that the redacted bank account details qualify as personal information within the meaning of the Act.

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply.  However, I am satisfied that none of those circumstances arises in this case in relation to the third party individual concerned.  Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance:

(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or 

(b) the grant of the information would be to the benefit of the person to whom the information relates.

As I find no basis for concluding that the release of the bank account details would be to the benefit of the individual to whom they relate, I find that section 37(5)(b) does not apply.  Having regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda Hospital case"), I also find no basis for releasing the details concerned in the public interest under section 37(5)(a).  Accordingly, I am satisfied that section 37(1) applies as claimed.

Are additional relevant "records" held by the Department?
Under section 2(5) of the FOI Act, a reference to records held by an FOI body includes a reference to records under the control of that body.  Section 11(9) of the Act provides that a record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of the FOI Act to be held by the FOI body.  A service provider is defined at section 2 of the Act as a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services.  The Act specifies that a contract for services includes an administrative arrangement between an FOI body and another person.

In this case, the Department has acknowledged that there are back-ups of mail boxes used by the Scheme on its ICT servers.  However, it argues that these records are not within its control.  In support of its position, the Department refers to the judgment of O'Neill J in  The Minister for Health and the Information Commissioner[2014] IEHC 231, which is a case that arose under the 1997 FOI Act.  In his judgment, O'Neill J. found that certain records in the possession of the Department of Health were not under its control.  He stated as follows:

"I am satisfied that to hold that mere lawful possession of a document was sufficient to make that document amenable to disclosure under the 1997 Act, on the basis that the document was "held" by the public body within the meaning of s. 6(1) would give rise to absurd and wholly unintended consequences, albeit in rare circumstances."

In its submission to this Office dated 25 October 2017, the applicant concedes that mere possession is not sufficient, but it contends that where the records relate to the functions of the FOI body, the records "are held for the purposes of the FOI Act since there is a nexus between the contents of the records and the duties and functions of the government department that possesses them".  In support of its position, the applicant refers to section 11(3) of the FOI Act, which sets out principles that give explicit recognition to the need for openness and accountability in government and public affairs.  However, section 11(3) applies to FOI bodies, not independent entities.

I note in this case that, unlike Mr. Justice Smyth in the Minister for Health case, Judge Harding Clark was appointed to carry out her independent function in relation to the Scheme on foot of a Government decision.  Indeed, Judge Harding Clark's appointment as independent judicial Assessor to the Scheme was approved by the Government following the Government decision to establish the Scheme.  In the circumstances, I am satisfied that her appointment was not a "contract for services" for the purposes of the FOI Act.

I also note that record 4 (now released) and Appendix 1 of the Report itself reflect that the decision to extend the Scheme to include the comparative study was made by Judge Harding Clark and her team, not the Department; record 4 is merely an update, not a request for approval.  As the Department states in its submission, neither the Minister nor the Department requested the Symphysiotomy & Pubiotomy Review.  I therefore accept that Judge Harding Clark and her team were not "service providers" for the Department within the meaning of section 2 the Act and that any records that they may hold relating to the Scheme, including the comparative study, are not within the control of the Department.

In addition, I note that Judge Harding Clark did not place any records with the Department for safe-keeping.  As the released records indicate, the Scheme itself was operated from premises on Townsend Street, not the Department.  The computer system for the Scheme operated through the Department's network, but according to the Department, Judge Harding Clark and her team had an independent and confidential domain and email address to which Departmental staff had no access.  As the Department has emphasised, paragraph 46 of the published Terms of Reference for the Scheme provides:

"The Assessor shall, where reasonably possible, arrange for the return to the Applicant or her Solicitor of any documents submitted by her or her solicitor to the Assessor as the case may be.  At the conclusion of the administration of the Scheme by the Assessor, the Assessor shall arrange for the destruction of all other confidential documentation and information whether in documentary or electronic form, howsoever created or obtained, at a suitable time to be determined by the Assessor.  The Assessor's decision under this paragraph shall be final and not subject to appeal."

The Department has explained that, upon completion of her work on Townsend Street, Judge Harding Clark complied with paragraph 46 by arranging for the return to the applicants or disposal by shredding of the confidential files and documentation relating to the Scheme, and she also requested that all information relating to the Scheme be erased from the computer system.  The computer files were erased accordingly, under Judge Harding Clark's supervision, but the fact that the files were automatically backed up on the Department's server was overlooked.  In the circumstances, I accept that any files relating to the comparative study referred to in Appendix 1 of the Report that may be retained on the Department's server are not held by the Department for the purposes of the FOI Act.  Moreover, having regard to the records on file and the contents of the Report itself, including Appendix 1, I find no basis for disputing the Department's position that it holds no additional records relating to the comparative study.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department's decision in this case as follows:

• I annul its decision with respect to the redactions made from record 2 and direct that access to this record be granted in full;
• I affirm its decision to refuse access to the bank account details redacted from record 8;
• I affirm its decision to refuse access to additional records relating to the comparative study referred to in part 2 of the applicant's request on the basis that such records are not held by the Department within the meaning of section 2(5) of the 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 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.

Stephen Rafferty
Senior Investigator