Whether the HSE was justified in its decision to refuse access to the source of certain information provided to the HSE concerning the applicant.

10 December 2018

Background

The applicant is a medical professional in the employment of the HSE who was the subject of a media report concerning a matter before the courts that related to events pre-dating his employment with the HSE. In October 2017 he was informed by the HSE that it had received information of that media report. On 30 November 2017 he made a multi-part request for information and records relating to the manner and nature of the communication of the information that was provided to the HSE. On 2 February 2017 the HSE decided to part-grant the request. It refused access to certain information under section 35 of the FOI Act, which is concerned with the protection of confidential information. The applicant sought an internal review of that decision, following which the HSE affirmed its original decision to refuse access to certain information and records sought. On 14 June 2018 the applicant sought a review by this Office of the HSE's decision to refuse to provide details of the source of the information.

During the course of the review, the HSE stated it was no longer relying on section 35 to refuse the information at issue, and argued that the information was instead exempt under sections 37 and 42(m)(i). The applicant was given an opportunity to make submissions on both these exemptions, but declined. In conducting this review I have had regard to the correspondence between the applicant and the HSE, and to correspondence between this Office and both the HSE and the applicant on the matter. I have also had regard to the contents of the record(s) sought.

Scope of Review

This review is concerned solely with whether the HSE was justified in refusing access to the source of the information provided to the HSE concerning the applicant under sections 37 and 42(m)(i) of the FOI Act.

Preliminary Matter

A review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision. As such, I am satisfied that it is appropriate to consider the HSE's claim for exemption of the information sought under sections of the Act that it did not initially rely upon when refusing the relevant part of the applicant's request.

Analysis and Findings

The HSE relied on sections 37(1) and 42(m) of the FOI Act to withhold the record in question. As section 42 serves to restrict the applicability of the FOI Act in certain circumstances, I have considered this provision first.

Section 42(m)(i)

Section 42(m)(i) provides that the Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal or lead to the revelation of the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, or where such information is otherwise in its possession. In essence, the section provides for the protection of the identity of persons who have given information in confidence in relation to the enforcement or administration of the law to ensure that members of the public are not discouraged from co-operating with such bodies or agencies. 

For section 42(m)(i) to apply, three specific requirements must be met. The first is that release of the withheld information could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of the information. The second is that information must have been provided in confidence, while the third is that the information must relate to the enforcement or administration of the law.

First requirement

The first requirement is clearly met in this case, given that the request is for the source of the information that was provided to the HSE.

Second Requirement

The second requirement is that the provider of information must have provided that information in confidence. In its submission to this Office, the HSE stated that it was clear that the provider had disclosed the information on a confidential basis, and said that the correspondence from the provider contains a clear statement that they did not want their identity revealed. 

In his application for review to this Office, the applicant argued that the person or persons who provided the HSE with the information in question did so with malicious intent. This Office gives significant weight to safeguarding the flow of information to FOI bodies and accepts that the disclosure of the identity of complainants, even where the evidence suggests that the complaint was maliciously motivated, could prejudice the flow of information from the public. This Office further accepts that in many situations the FOI body acts on the information provided in good faith. Indeed, the Commissioner has previously expressed the view that when the situation of the person who, in good faith, supplies information which is subsequently found on investigation to be inaccurate or mistaken is considered, the difficulty for the FOI body in handling such information in any other manner becomes apparent.

Having regard to the nature of the information at issue and to the HSE-™s submission, I consider that the information was given in confidence in this case and I find that the second requirement has been met. 

Third Requirement

The third requirement is that the information provided to the FOI body relates to the enforcement or administration of the law. In accordance with the provisions of the Health Act 2004 (as amended by the Health Service Executive Act 2013), the HSE is the single body with statutory responsibility for the management and and delivery of health and personal social services to the population of Ireland. Section 7(1) of the Health Act 2004 states that the object of the HSE is to use the resources available to it in the most beneficial, effective and efficient manner to improve, promote and protect the health and welfare of the public. Section 7(2) of that same Act states that the HSE shall, to the extent practicable, further its object.

Having regard to the contents of the information, and the context in which it was provided to the HSE, I accept that the information provided relates to the enforcement or administration of the law by the HSE and that the third requirement has been met.

Having found that each of the three requirements are met, I find that section 42(m)(i) the FOI Act applies and that the HSE was justified in refusing the applicant's request for the source of the information that was provided to the HSE concerning the applicant.

In light of this finding, it is not necessary for me to consider whether section 37 of the Act applies.

Decision 

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse access, under section 42(m)(i) of the FOI Act, to the source of the information that was provided to the HSE concerning the applicant.

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