Whether the HSE was justified under various exemptions in the FOI Act in refusing access to information in records covered by the applicant's request relating to a healthcare facility

30 September 2019

Background

In a request dated 8 September 2017, the applicant sought access to "all communications [between the HSE, HIQA and other named parties], emails and accompanying documents" created within the previous 12 months, in relation to a healthcare facility previously operated by the applicant. The HSE did not issue a decision. On 7 December 2017 the applicant submitted a request for an internal review on the basis of the request being deemed refused under the provisions of section 19(1) of the FOI Act.

In its late internal review decision of 12 January 2018, the HSE failed to provide the applicant with any details about the exemptions it had applied, other than to refer to the exemptions in a decision schedule which documented more than 2,700 pages of records. The decision schedule stated that information in the records was refused in part and in full under sections 15(1)(d), 30(1)(c), 31(1)(a), 35(1)(a), 36(1)(b), 36(1)(c) and 37(1) of the FOI Act. While it was not clearly stated in either the decision letter or the schedule, the HSE actually released a significant number of records.

On 13 July 2018, the applicant's representative sought a review by this Office of the HSE's decision on the request.

The HSE’s response to this FOI request fell well short of the requirements of the FOI Act. This Office issued a section 23 Notice to the HSE, requiring it to provide reasons for its decision to both the applicant and to the Commissioner. In response, on 27 September 2018, the HSE said that it would release some more records. It also changed the basis on which it was withholding some records.   

On 5 November 2018 the HSE issued what it described as a "modified letter and schedule of records" to the applicant and to this Office and stated that it had released a small number of additional records. In the November schedule the HSE referred to certain records as "missing".

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 HSE and the applicant. I have also examined the records at issue.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the HSE was justified in deciding to refuse access to information in records falling within the scope of the applicant's FOI request, on the basis of sections 15(1)(a), 15(1)(d), 30(1)(b), 30(1)(c), 31(1)(a), 36(1)(b), 36(1)(c) and 37(1) of the FOI Act.

Difficulties in this review

The review process has taken far longer than I would have wished and the bringing of the case to a conclusion has been a tortuous process.  A number of factors contributed to the difficulties and I will comment on some of them in the hope that parties to this and other FOI requests might take some guidance from what happened.

First, the request was extremely broad by any standards, referring as it did to “all communications” and accompanying documents in relation to the healthcare facility covering a period in which several parties, including the HSE and HIQA, were involved in a complex transfer of services that involved significant issues around care of residents, legal, staffing, financial and other matters. While the HSE acknowledged from the start that it was unable to meet the statutory deadlines due to the volume of records to be identified, collated and considered, it appears to have given no consideration to sections 15(1)(c) and 15(4) of the FOI Act. These administrative refusal provisions clearly envisage that where, by reason of the nature or number of the records sought, retrieval and examination of them would cause substantial and unreasonable interference with or disruption of the work of the FOI body, an offer of assistance to the requester to amend the request must be made and, ultimately, refusal of the request may be an option. I consider that there is also some onus on the requester to identify what records are actually being sought (section 12(1)(b) refers) and to co-operate with efforts made to refine the request and make it more manageable. Clearly, the legislature did not envisage that disproportionate resources would have to be used in order to deal with FOI requests.

At one stage, this Office considered using its discretionary power under section 22(9)(a)(vii) of the Act to discontinue the review on the basis of the number and nature of the records to be examined and the likely substantial and unreasonable disruption of the work here. However, I decided that the review should continue primarily because of the work already done by all parties in trying to bring clarity around the records held, including the efforts of this Office’s investigator to reconcile the confusing presentation of the schedules etc.

Secondly, much of the confusion stemmed from well-intentioned but difficult to follow presentation of the subject records by the HSE. In fairness, it acknowledges that its decision is not clear and that this was partly due to three offices contributing records separately on foot of the original FOI request. The HSE said that each office provided its own numbering system for their respective records and that the decision maker subsequently consolidated those records into a single decision schedule and applied a further 'FOI' reference number. It seems that an effort was made to present the records in date order which sometimes resulted in unrelated pages being copied on both sides of one page and in various subject matter from the files appearing in different parts of the schedules. The numbering system gave some pages three different identifiers, there were gaps in the pagination and a lack of clarity as to which pages had been released in full or in part and which exemptions were being claimed in relation to which records. All this made it extremely difficult to establish what exactly was before the Commissioner for review. While this Office has had many years of experience in dealing with large volumes of records including part released and redacted ones, I have to say that this was one of the most frustrating cases that we have handled.  I would stress to public bodies, including the HSE, that the scheduling of records – recognised as best practice in FOI decision making – has limited value unless the records are easily identifiable and linked to the decision maker’s grant or refusal of access to each record, part of record or page under one or more provisions of the Act, including the public interest balancing test where it applies.  

Following the intervention of this Office, the HSE reconsidered its refusal of access to some parts of the records and decided to release them in September 2018. While release of records previously withheld by a public body is to be welcomed, the situation in this case was further complicated following the provision of a revised schedule to the applicant and to this Office in November 2018 and by difficulties in detecting redactions on the photocopied pages provided to the investigator.

I acknowledge that HSE staff attempted to assist the investigator in interpreting the schedule of records and accounting for pagination errors etc. However, it is not practicable for this decision to address each and every query raised by the applicant. I have carefully examined all of the records supplied to this Office by the HSE and have considered whether they meet the terms of the relevant exemptions. Given the resources already allocated to this review, I am satisfied that the review carried out is reasonable and proportionate in the circumstances.

For clarity, I am relying on the decision schedule which the HSE issued along with its letter to the applicant and this Office of 5 November 2018 including the 'FOI/20409' reference numbers.  Of the 923 groups of records listed in that schedule, I have concluded that 560 were released by the HSE.

Other preliminary issues
It is clear that the parties are in dispute and are involved in legal proceedings. I have no remit to take into account or make any findings on many of the issues raised by the parties in submissions which are not directly relevant to the right of access to records within the scope of the review. Section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons for the request.

Section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records in my analysis is limited.

Analysis and Findings

Withheld Information - Outside scope of request and review

The HSE refused access to a small number of records on the basis that they are not within the scope of the FOI request. The records are identified as FOI/20409/24, FOI/20409/336, FOI/20409/337 and part of record FOI/20409/440 (at page 1,184).

Having examined these records, I am of the view that records FOI/20409/24 and FOI/20409/337 concern matters which are not within the scope of the applicant's request as made and I find that they are not within the scope of this review. However, I find that FOI/20409/336 and 440 are records within the scope of the applicant's request and I will consider them further in this decision.

I have decided that a number of other records contain information that is also outside the scope of this review and I will refer to those records in my consideration under section 36 later in this decision. 

Section 15(1)(a) - Refusal on administrative grounds

Whether further records are held

Section 15(1)(a) of the FOI Act 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. The role of my Office in cases such as this is to review the decision of the FOI body and to decide whether that decision was 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 and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

Record FOI/20409/32 was listed in the January 2018 schedule as refused under section 36(1)(b). However, in its November 2018 schedule the HSE stated that the record FOI/20409/32 was a "missing document". It also stated that there was an "error in schedule numbering" and that the document was "not available". FOI/20409/32 appears to contain five pages. The November schedule also lists records FOI/20409/08 (pages 21-25), FOI/20409/319 (pages 896/897), FOI/20409/463 and FOI/20409/891 (page 2,669) as "missing".

In its submission, the HSE does not refer to section 15(1)(a) or searches it undertook to locate these missing records. It is not clear to me if the HSE’s position is that the records do not exist and the confusion arises because of a pagination, duplication or other error, or whether the records were originally identified and numbered but have since been mislaid or destroyed. Therefore, it is not possible for me to decide that the HSE is justified in claiming that section 15(1)(a) applies to the “missing” records. Accordingly, I have no option but to annul the HSE's decision to refuse access to those records under section 15(1)(a) and require it (if the applicant still requires access to them), to make a fresh decision on these records, having carried out adequate searches and/or provided explanations for any “missing” records. I regret that the process will be prolonged by this. However, having regard to the extent to which this Office has already had to investigate errors in numbering and scheduling, I am not prepared to engage in further rounds of queries at this stage.

Section 15(1)(d) - Information in the public domain

The HSE says that certain records do not fall within FOI as they are publicly available. The records are categorised in the HSE's schedule as FOI/20409/133 [not mentioned in the November schedule but referred to in the previous (September) one], FOI/20409/137, FOI/20409/176, FOI/20409/285, FOI/20409/542, FOI/20409/602, FOI/20409/728-732 [this appears to be a single document and is also referenced as pages 2,027-2,120], FOI/20409/740 and FOI/20409/836.

Section 15(1)(d) of the FOI Act provides that FOI bodies may refuse to grant a request where the information is already in the public domain. The HSE did not provide any indication of the location of the records that it states are publicly available. During the review, the investigator identified several of the records as documents that are publicly available e.g. on the internet.

I find that the HSE is justified in withholding access to the records under section 15(1)(d) of the FOI Act. However, in making this finding, I direct the HSE to first establish whether the applicant still requires these and, if so, to provide the applicant with a brief description of the records listed above together with weblinks or other locations where the records are publicly available.

Section 30(1)(b) - functions and negotiations of FOI bodies

The HSE refused access in part and in full to records FOI/20409/41, FOI/20409/437 and FOI/20409/439 under section 30(1)(b).

Access to record FOI/20409/456 was refused by the HSE under section 36(1)(c). However, having examined the record I have decided that it is more appropriate to consider it and record FOI/20409/912 under section 30(1)(b).

Section 30(1)(b) of the FOI Act provides for the refusal of 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(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.

The HSE says that the withheld information in the records is sensitive and relates to the appointment of staff and HR issues. It also says that access to the records could adversely affect ongoing negotiations and that difficulties could occur in relation to the transfer of information to any proposed new service provider of a healthcare facility which was previously operated by the applicant. It states that on balance the public interest against release of the information outweighs the argument in favour of granting access to the information.

Having examined the content of the records and considered the context of the management issues involved, I accept the HSE’s position that release of the information at this time could reasonably be expected to have a significant adverse effect on ongoing negotiations with other potential service providers and the industrial relations functions of FOI bodies.  Although the records are several years old, it is evident from information provided in the HSE submissions, that some of the difficulties identified are still very much “live” issues in the management of the HSE and in its relations with staff, including the appointment of an alternative service provider. I find that section 30(1)(b) applies to the withheld parts of the records listed above.

Section 30(1)(c)

The following records fall to be dealt with under section 30(1)(c):

FOI/20409/131, 136, 189, 190 (in part), 201, 263, 317, 318, 384, 414, 466, 495, 507, 572, 581, 594, 611, 612, 618, 629, 641, 658, 662, 663, 679, 680, 681, 685, 687, 717, 810, 811, 812, 817 (in part), 848, 897 & 898.

Having examined record FOI/20409/814, for which this exemption was originally claimed, I am of the view that section 31(1)(a) is the most appropriate exemption to apply and I will consider that record later in this decision.

In addition, record FOI/20409/618 was withheld under section 36(1)(b). Having examined it, I consider section 30(1)(c) applies and I will consider the record under this section first.

Section 30(1)(c) provides that a head may refuse to grant an FOI request 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.  The exemption does not contain a harm test but is subject to a 'public interest override', i.e. even where the requirements of subsection (1) have been met, the exemption does not apply where the public interest would, on balance, be better served by granting access than by refusing to grant the request.  Any potential level of harm that may result from release would be relevant to the public interest considerations in section 30(2).

An FOI body relying on section 30(1)(c) should identify the relevant negotiations at issue. Relevant factors in considering whether there is a negotiation include whether the FOI body was trying to reach some compromise or some mutual agreement.  An FOI body relying on this exemption must show to the Commissioner that release of the record could reasonably be expected to disclose positions taken (or to be taken), etc., for the purpose of any negotiations.

The HSE says that it is a temporary registered provider of care services in the healthcare facility since 2017 and that it is working to provide for the transition of the service to another care provider. It says that the records disclose current positions and ongoing discussions in relation to the provision of care services by an alternative service provider and sensitive information on the running of the service, staff and resources.

Having examined the records concerned I accept that release of this information would disclose positions to be taken by the HSE for the purpose of various negotiations on the provision of care services as described. Accordingly, I find that section 30(1)(c) of the Act applies to the records.

Section 30(2) - the Public Interest
Section 30(1)(c) is subject to a public interest balancing test. If release of the records cannot harm current or future negotiations or cause any other harm, then the public interest in openness in the workings of public bodies and expenditure of public funds means that, in the absence of any other applicable exemption, the records should be released. The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. However, where the release of the record discloses positions taken for the purposes of negotiations which could reasonably be expected to prejudice current or future negotiations or cause some other harm, then this is a public interest factor weighing in favour of refusing the request.

In relation to the information to which section 30(1)(c) has been found to apply, the HSE has identified a potential impact on future negotiations. It also identified issues in the records that relate to industrial relations matters and the transition process concerning an alternative service provider. I am satisfied from the content and context of these records that sensitive negotiating positions are disclosed in relation to important matters which are ongoing, including issues about the care to be provided in the facility. I consider that there is a strong public interest in the negotiations proceeding.  I am satisfied that the public interest is served to some extent by the information which has been released already in this case and I find that, on balance, the public interest at this point in time would not be better served by release of the information to which section 30(1)(c) applies.

I find that the HSE was justified in its refusal to grant access to the information in the records listed above on the basis of section 30(1)(c) of the FOI Act.

The HSE says that the records "will be available for release at a later date...". My decision is confined to the right of access under the FOI Act and can only relate to the situation at this time. It is a matter for the HSE to re-consider whether this or any other exemption applies or whether records can be released should future access requests be received.

Section 31(1)(a) - Record considered to attract legal professional privilege
The HSE refused access in full and in part to the following records under section 31(1)(a): FOI/20409/141, 163, 204, 211, 224, 232, 233, 235, 236, 244, 268, 288, 289, 290, 293, 296, 297, 302, 306, 314, 315, 320, 321, 323, 326, 331, 332, 333, 338, 340, 342, 343, 352, 354, 355, 363, 364, 365, 366, 367, 368, 372, 377, 378, 380, 381, 382, 383, 387, 391, 392, 400, 403, 409, 410, 427, 429, 430, 431, 432, 436, 444, 446, 449, 450, 451, 454, 457, 465, 468, 505, 513, 517, 544, 550, 585, 586, 597, 598, 606, 608, 609, 614, 615, 616, 617, 621, 622, 648, 683, 697, 701. 702, 720, 735, 737, 766, 776, 795, 796, 809, 813, 817 (in part), 828, 833, 834, 844, 852, 855, 862, 866, 867, 870, 871, 884, 885, 886, 899, 900, 905, 906 and 908
I include record FOI/20409/336 and 814 under this section. I also include FOI/20409/785 which was originally exempted under section 36(1)(b).

The HSE exempted records 163, 683 and 844 on the basis of section 31(1)(a). I consider that it is more appropriate to consider the withheld information in records 163 and 683 under the mandatory exemption at section 37 (personal information) and record 844 under section 36 (commercial sensitivity), which I address later in this decision.

Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. It does not require the consideration of the public interest. Previous decisions from this Office have accepted that legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (legal advice privilege), and
• confidential communications made between the client and a professional legal adviser or the legal adviser and a third party or between the client and a third party, the dominant purpose of which is preparation for contemplated/pending litigation (litigation privilege).

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

The HSE states that the records comprise legal professional advice and are communications between the HSE and its legal adviser for the purpose of giving and receiving legal advice.

In its submission, the applicant states that it is not clear on what basis internal emails have been withheld on the basis of legal professional privilege.

Advice Privilege

Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser 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 previous decisions the Commissioner has taken the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.

The records comprise emails to and from HSE staff and its legal advisers, some of which have attachments. While some attachments have been allocated separate record numbers by the HSE for the purposes of the FOI request, it is clear that many of them are associated with another separately numbered record and form part of a continuum of correspondence. Other records disclose the legal advice sought or received, e.g. in memos updating relevant staff of action to be taken on foot of that advice.

Having carefully examined the records, I accept that many of them qualify for legal advice privilege as they disclose confidential legal advice sought and received from the HSE's professional legal adviser. Some of the same records were clearly prepared with the dominant purpose of preparation for litigation, i.e. the pending proceedings between the parties. However, as these also qualify for advice privilege, I see no need to make separate findings on litigation privilege.

Accordingly, I find that the HSE was justified in withholding access to the following records under section 31(1)(a) of the FOI Act. FOI/20409/141, 204, 211, 224, 232, 233, 235, 236, 244, 288, 289, 290, 293, 296, 297, 302, 306, 314, 315, 320, 321, 323, 326, 331, 332, 333, 336, 338, 340, 342, 343, 352, 354, 355, 363, 364, 365, 366, 367, 368, 372, 377, 378, 380, 381, 382, 383, 387, 391, 392, 400, 403, 409, 410, 427, 429, 430, 431, 432, 436, 444, 446, 449, 450, 451, 454, 457, 465, 468, 505, 513, 517, 544, 550, 585, 586, 597, 598, 606, 608, 609, 614, 615, 616, 617, 621, 622, 648, 697, 701, 702, 720, 735, 737, 766, 776, 785, 795, 796, 809, 814, 817, 828, 833, 834, 852, 855, 862, 866, 867, 870, 871, 884, 885, 886, 899, 900, 905 and 906

I am not satisfied that the exemption applies to records FOI/20409/268, 813 and 908 and I direct the release of the withheld information in those records, except for the references to care facilities other than the facility the subject of the request which are outside of its scope.

Section 36 - commercially sensitive information

The HSE refused access in full and in part to the following records under section 36(1)(b): FOI/20409/25, 28, 30, 49 (reads 48), 95, 106, 117, 125, 129, 167, 171, 192, 245, 422, 428, 433, 440, 508, 509, 510, 512, 516, 520, 522-527 incl, 529-535 incl, 537, 562, 592, 678, 686, 709, 710, 713, 749, 783, 784, 785, 843, 844, 860, 869, 889. One record with no specific FOI reference number (identified only as page number 1,383) was also withheld on the basis of this exemption.

In the November schedule the HSE exempted record 844 on the basis of section 31(1)(a). However, it is clear to me that it was included there in error and that the HSE intended to refer to section 36 as it had done in the earlier schedule.

The HSE refused access in part to record FOI/20409/127 under section 36(1)(c).

My findings below in relation to this group of records are informed by the fact that some of these records make very little reference to the care facility the subject of the request and disclose information about the financial affairs of the HSE generally and of other agencies, including details of funding of services completely unrelated to the care facility at issue here. In some instances, the content of the main part of the record falls outside of the scope of the request and I cannot therefore direct its release. Where there are passing references in some records to the care facility at issue and an FOI body other than the HSE mentioned in the request, I have concluded that release of very heavily redacted versions of the records would not be practicable in some instances and would result in the record being misleading (section 18 of the Act refers). I note also that some of the redactions are details of payments/refunds to residents or staff members which would be personal information and most likely exempt under section 37.

Accordingly, I find that the withheld information in the following records in the section 36 group is outside the scope of this review or does not fall to be released owing to the provisions of section 18 of the Act: FOI/20409/25, 28, 30, 49 (reads 48), 95, 106, 117, 125, 129, 167, 171, 245, 422, 440 page 1,184 only (note that p1,183 of record 440 marked G2600 is within scope and falls to be released), 869

Section 36(1)(b) must be applied to certain types of information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release.

The harm test in the first part of section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". The Commissioner takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable.

The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption. However, the Commissioner considers that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.

Section 36(1)(c) states that access to a record must be refused where disclosure of information contained in the record could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low. Having said that, the Commissioner expects that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.

As a general principle, the Commissioner takes the view that section 36 is primarily aimed at protecting the commercial interests of parties engaged in commercial activity. He has found that there is some uncertainty as to the position of FOI bodies under section 36. However, depending on the circumstances of the case, the Commissioner has accepted that the FOI Act does not prohibit an FOI body from relying on the provisions of section 36 in relation to its own commercial activities, those of another FOI body or those of its service providers who may be operating in a competitive environment.

Section 2 of the Act defines a service provider 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”.  As well as financial and accounting matters concerning the HSE’s involvement with the facility, the records include invoices or statements from 2016 and 2017 detailing services and supplies to the care facility.

In its submission, the HSE states that release of information could impact on the delivery of services but it does not say how such impact would occur or how release of the withheld information in the records would be likely to cause any loss or prejudice to commercial interests that it and other service providers might have, and it is difficult to envisage how this might arise in the case of some of the records. I accept that the remainder of the “in scope” records in this group contain information about a wide range of transactions and in examining the records, I have taken account of the context and content of these and of any harm or prejudice within the terms of section 36(1)(b) that might result in relation to the commercial activities of third parties. I am satisfied that the HSE had adequate opportunity to identify any material that it was particularly concerned about and to make submissions in relation to the application of the exemption.

I find that the withheld information in the following records is not exempt under section 36(1)(b) except insofar as they contain banking numbers, codes etc. which should be redacted: FOI/20409/192, 433, 440-page 1,183 (page 1,184 of 440 found to be out of scope) 522-527 incl, 529-535 incl, 537, 562, 592, 678, 686, 709, 710, 713, 783, 784, 843, 844, 860, 889 and page number 1,383

I find that the section 36(1)(b) exemption applies to the following records: FOI/20409/428, 508, 509, 510, 512, 516, 520 and 749.

Having found the exemption to apply, I will consider the public interest balancing test in relation to those records further in this decision.

Turning to record FOI/20409/127 which the HSE decided was exempt under section 36(1)(c), other than quoting the text of that section, the HSE did not provide any argument based on contractual or other negotiations. Even if I were to take it that any future negotiations might be relevant here, the HSE has not identified how such negotiations could be prejudiced by release of the information in this record. Given the record’s content, I find that the decision to rely on section 36(1)(c) has not been justified.

Section 36(1) is subject to section 36(2) which provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arises in relation to those records I have found to be exempt under section 36(1).

Section 36(3) – the Public Interest
Section 36(3) provides that "Subject to section 38, subsection (1) does not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request."

Section 36(1) itself reflects the public interest in the protection of commercially sensitive information. The Commissioner accepts that there is a legitimate public interest in persons being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result and it is this public interest which section 36(1) seeks to protect. The Act also recognises, both in its long title and its individual provisions that there is a significant public interest in the activities of public bodies being open and accountable.

There is a strong public interest in openness and accountability in the use of public funds. Openness in respect of the expenditure of public funds is a significant aid in ensuring effective oversight of public expenditure, in ensuring that the public obtains value for money, and in preventing fraud corruption and waste or misuse of public funds.

In this case I have identified a small amount of information withheld by the HSE, release of which, I accept, could result in a material financial loss or gain to the persons to whom the information relates. The information includes bank account numbers and codes. I find that, on balance, the public interest would not be better served by the release of the information in such records.

Accordingly, I direct release of the records as listed above. I also direct release of record FOI/20409/127. I find that the HSE was justified in its decision to refuse access to the remainder of the records under section 36(1)(b) of the FOI Act.

Section 37(1) - Personal Information
The HSE refused access in full and in part to the following records under section 37(1).
FOI/20409/03, 08, 13, 14, 15, 43, 46, 47, 48, 50, 51, 56, 57, 59, 60, 61, 62, 65, 70, 71, 74, 75, 76, 77, 79, 83, 84, 85, 90, 92, 97, 98, 100, 120, 121, 122, 123, 124, 139, 140, 150, 151, 156, 157, 158, 162, 164, 168, 169, 172, 179, 190 (in part), 193, 194, 197, 200, 214, 224, 225, 226, 230, 231, 239, 270, 287, 300, 309, 319 (page 895 only), 397, 402, 448, 455, 461, 462, 467, 469, 470, 472, 484, 496, 528, 536, 538, 539, 548, 631, 635, 646, 665, 667, 672, 694, 695, 696, 746, 747, 750, 754, 755, 757, 763, 799, 800, 801, 802, 804, 806, 818, 821, 822, 823, 829, 830, 838, 873, 876, 882, 883, 890, 894 and 913

I include record 163 under this section as it contains personal information..

I have already found record FOI/20409/224 to be exempt under section 31(1)(a), so there is no need for me to consider that record here.

Record FOI/20409/683 is not listed in the November schedule but was refused in the earlier schedule under section 35 (Information obtained in confidence). Having examined the record, I consider that given the nature of the information, section 37(1) is the more relevant exemption.

Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information.  Section 2 of the FOI Act defines "personal information" as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. Section 2 goes on to list fourteen categories of personal information including the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.

Section 2 of the Act includes an exclusion to the definition of personal information that relates to members of staff of an FOI body. It states that in a case where the individual holds or held a position as a member of staff of an FOI body, personal information does not include the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid. Similarly, where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service does not comprise personal information.

Generally speaking, the exclusions contained in the definition of personal information are intended to prevent FOI bodies from relying on section 37 to refuse to grant access to records created by individual staff members or service providers in the course of their work. They do not deprive public servants, or individual contractors, of the right to privacy generally. Essentially, when considering the exclusions, a distinction must be drawn between the role of a staff member or contractor as a provider of a public service which is subject to oversight and the privacy rights of those same individuals regarding their private employment affairs. In my view, the plain language of the FOI Act strikes this balance by excluding work and role related functions from the definition of personal information but including details relating to matters such as personnel files and employment affairs, which are specifically included in the definition of personal information. It seems to me that in many instances, records covering sensitive issues such as complaints, allegations, disciplinary issues or accidents in the workplace will fall to be considered as personal information under section 37 of the Act. Owing to the wide scope of the request as made, the records at issue here contain many such instances.

I would question whether the applicant could have had any reasonable expectation in the circumstances of this case that the personal information of staff and residents at the care facility would be released under FOI. Unfortunately, as the applicant has not excluded such information from this review, I must consider it.  At one stage in the review, solicitors for the applicant advised that their client was not interested in e.g. residents’ names but they subsequently said that their client wished that the entire decision be reviewed. Thus, I have examined all of the redacted information.

I am satisfied that in most of the records withheld or redacted under section 37, the information about individuals in the workplace is not of a type that would come within the exclusions to the definition of personal information. However, from my examination of the records, it is not absolutely clear whether certain named individuals are employees of a company which is under a contract for services and consequently may be regarded as providing a service on behalf of the HSE. It would be disproportionate in the circumstances of this case for this Office to query the status of each and every named person in the many records.  I consider that it is best to err on the side of caution and proceed on the basis that, where the status/role of the individual is unclear, references to them are personal information.

I am satisfied that the withheld information is personal information relating to individuals other than the applicant. Accordingly, I find that section 37(1) of the Act applies to the withheld records and parts of records listed above.  
 

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case.

Section 37(5)- The Public Interest
Sections 37(5)(a) and (b) provide that a record, which is otherwise exempt under section 37(1), may be released in certain limited circumstances.

The effect of section 37(5)(b) is that such an exempt record may be released if it can be demonstrated that the grant of the request would benefit the third party whose personal information is contained in the records. I find that section 37(5)(b) does not apply in this case.

In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

In considering the public interest test at section 37(5)(a), I have had regard to the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] IESC 26 ("the Rotunda case") (available at www.oic.ie). In the judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, 'a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law' must be distinguished from a private interest for the purpose of section 37(5)(a).

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise 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. Accordingly, 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.

In my view, the information withheld in the records is private in relation to persons other than the applicant. I cannot identify a public interest which would override the Constitutional rights to privacy of the third parties to whom the records relate. The public interest has been served to a large extent by the release of many records in full or in part to the applicant.

I therefore find that section 37(5)(a) does not apply in the circumstances and that the withheld information in the records is exempt under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the HSE.

In relation to Section 15(1)(a)

I am unable to determine whether the HSE has justified its effective refusal of access to further records covered by the request on the basis that it has taken all reasonable steps to search for such records or that such records do not exist. I annul its effective application of section 15(1)(a) and I direct it to make a fresh decision on that part of the request in accordance with the provisions of the FOI Act, including those “missing” records identified above. I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the HSE to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) of the FOI Act.

In relation to Section 15(1)(d)

I affirm the decision of the HSE to refuse access to the records as listed under section 15(1)(d) of the FOI Act.

In relation to Sections 30(1)(b) and (c)

I affirm the decision of the HSE to refuse access to withheld information in the records as listed under sections 30(1)(b) and 30(1)(c).

In relation to Section 31(1)(a)

I affirm the decision of the HSE to refuse access to withheld information in the records listed above as exempt under section 31(1)(a).

I annul the decision of the HSE to refuse access in full and in part to the following records under section 31(1)(a) and I direct the release of the information in these records as listed: FOI/20409/268, 813 and 908.

In relation to Sections 36(1)(b) and (c)

I affirm the decision of the HSE to refuse access to records FOI/20409/428, 508, 509, 510, 512, 516, 520 and 749 under section 36(1)(b).

I annul the decision of the HSE to refuse access to withheld information in the records listed above as not being exempt under section 36(1)(b) and section 36(1)(c) and I direct the release of the withheld information in those records except banking details which should be redacted.

In relation to Section 37(1)

I affirm the decision of the HSE to refuse access to withheld information in the records as listed under section 37(1). I find that the public interest in favour of granting access to the withheld information does not outweigh the public interest that the right to privacy of the third parties should be upheld.

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.

 

 

 

                                      

Elizabeth Dolan

Senior Investigator