Whether the HSE was justified in its decision to grant a request to which section 38 of the FOI Act applies, concerning access to information relating to the placements made by recruitment agencies on the HSE Agency Framework during September and October 2017

21 February 2018

Background

This review arises from a decision made by the HSE to release records following a request to which section 38 of the FOI Act applies. Section 38 applies to cases where, at some stage in the decision making process, the public body has formed the view that the record(s) in question qualify for exemption under one or more of the relevant exemptions in the FOI Act (i.e. sections 35, 36 and 37 - relating to information that is confidential, commercially sensitive, or personal information about third parties, respectively) but that the record(s) should be released in the public interest.

Where section 38 applies, the public body is required to notify an affected third party before making a final decision on whether or not the exemption(s), otherwise found to apply, should be overridden in the public interest. The requester, or an affected third party, on receiving notice of the final decision of the public body, may apply directly for a review of that decision to this Office.

On 6 December 2017, the HSE received a request seeking access to information relating to the placements made by recruitment agencies on the HSE Agency Framework during September and October 2017. The HSE formed the opinion that the request was one to which section 38 of the FOI Act applied and wrote to the applicant on 4 January 2018 inviting a submission on the possible release of certain records. The applicant made a submission to the HSE on 22 January 2018, following which, by letter dated 25 January 2018, the HSE notified the applicant of its decision to release the records. The applicant sought a review by this Office of that decision on 09 February 2018.

Analysis and Findings

Section 38(2)
Section 38(2) provides that the head of a public body shall, not later than two weeks after the receipt of the request, notify any relevant third parties:

"(i) of the request and that, apart from this section, it falls, in the public interest, to be granted,
(ii) that the person may, not later than 3 weeks after the receipt of the notification, make submissions to the head in relation to the request, and
(iii) that the head will consider any such submissions before deciding whether to grant or refuse to grant the request."
In this case, the FOI request was received by the HSE on 6 December 2017. However, the records received by this Office indicate that the HSE West did not formally contact the affected third party, as provided for at section 38(2), until 4 January 2018, some 4 weeks after receipt of the request from the original requester. Under section 38(2), the applicant should have been formally notified by 20 December 2017 at the latest.

I understand that the HSE contacted the applicant by email on 20 December 2017 which was within the two week time frame for notification of the relevant parties. However, the email made it clear that contact was being made informally. Indeed, the notification of 4 January 2018 expressly referred to the earlier contact as an informal seeking of views.

The Central Policy Unit of the Department of Public Expenditure and Reform has published guidance on the procedures to be followed when processing requests to which section 38 applies. In that guidance, it suggests that the decision maker may find it helpful in many cases, when considering whether one or more of the relevant exemptions applies, to undertake informal contact with the relevant third party. However, the guidance cautions that where such informal contacts are being undertaken they must be done within the first few days of receiving the request. It explains that where the decision maker considers that one or more of the relevant exemptions apply but that the records should be released in the public interest, the formal consultation procedures must be initiated within 10 working days of receiving the request.
In certain circumstances the Act provides for an extension of this period to 20 working days. The circumstances are where the amount of records to be considered and/or the number of third parties that must be consulted is such that compliance with the initial 10 working day period is not reasonably possible. If those circumstances arise, the requester must be notified of such extension and the reasons for the extension prior to the expiry of the initial ten day period.

In this case, it is clear that the HSE did not comply with the section 38 requirements. I am concerned at the delay that has arisen for both the requester and the applicant in receiving a binding determination on the matter as a result of the HSE's failure to correctly apply those requirements. While I am reluctant to take any action that adds further to that delay, I find that the decision of the HSE West should be annulled in light of its failure to properly comply with the requirements of section 38. The effect of this is that the HSE will have to conduct a new, first instance decision-making process in which it can apply the section 38 requirements of the Act correctly.

I acknowledge that section 38 is a difficult provision to apply and that compliance can place an onerous burden on decision makers in FOI bodies. However, the HSE should be aware of the step by step guide to the application of section 38 (including some letter templates) provided by the Central Policy Unit which is available at www.foi.gov.ie. The Commissioner's guidance on section 38 on www.oic.ie also contains a useful commentary on the Section 38 provisions.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the HSE in the matter and direct it to conduct a new decision making process which complies with the requirements of Section 38 of the Act.

Should a valid application be received from any party in relation to the new decision, this Office will endeavour to process that application as quickly as possible and in consideration of the interests of all affected parties.

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.

Stephen Rafferty
Senior Investigator