Whether the HSE was justified in refusing to fully grant the applicant's request for records relating to her late husband, including further records the applicant said should exist

10 January 2019  

Background

The applicant's request has its background in her late husband's week-long stay for respite care in a particular medical facility in 2016 and in her subsequent complaints about the care he received.

On 29 July 2018, the applicant made an FOI request for her husband's medical notes and files as held by a named doctor and all notes and records created or held by the facility or its head office relating to her husband since the time of his admission, including notes made by the facility on a specified document. She also said that she wanted any email, fax or postal correspondence relating to her husband whether internally or externally sent or received since the time of his admission. 

The HSE's decision of 17 September 2018 granted access to most of the 107 records it had identified as covered by the request. It refused to grant records/pages 38-39, 64-67, 84-96 and 101 under sections 29 (deliberative process) and 30(1)(a) (information prejudicial to the effectiveness of an FOI body's inquiries or procedures for their conduct) of the FOI Act.  It said that it was refusing certain other records under section 15(1)(a) of the FOI Act, on the basis that it had carried out all reasonable steps to look for such records or that they did not exist. 

On 19 September 2018, the applicant sought an internal review of the HSE's decision, including its refusal of access to records on the basis that they cannot be found or do not exist. The HSE's internal review decision of 2 October 2018 affirmed its earlier decision.

On 9 October 2018, the applicant sought a review by this Office of the HSE's decision on her request. During the review, the HSE said that it would grant access to records 84-86, 88-96 and 101 in full. It also said that it would grant partial access to record 87 i.e. subject to the redaction of one sentence concerning the daily rate for and estimated timeframe for an independent review of the applicant's complaint. It suggested that the sentence may not be covered by the request and said that it was in any event exempt under section 36 (commercial sensitivity). 

I have now decided to conclude my review of the HSE's decision 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 HSE, Mr Y (the independent reviewer of the applicant's complaint) and the applicant. I have had regard also to the provisions of the FOI Act and the records considered by the HSE in its decisions.

Scope of Review

This review is confined to whether or not the HSE has justified its refusal to grant access to records 38-39 and 64-67 and the remaining sentence in record 87, and whether it has justified its reliance on section 15(1)(a).

Preliminary Matters

At the outset, it is relevant to note a number of preliminary matters. 

I have great sympathy for the circumstances surrounding the applicant's request. I have given careful consideration to her submissions and to the various documents she provided to this Office in the course of the review. However, I cannot take into account or make any findings on many of the issues she raised since my remit under the FOI Act is relatively narrow. As explained in this Office's letter to the applicant of 21 November 2018, the Information Commissioner has no powers under the FOI Act to review any aspect of the care given to the applicant's late husband or the treatment of her complaints. Neither can the review consider the HSE's handling of the applicant's FOI requests except insofar as the matters outlined above under "Scope of the Review" are concerned. Furthermore, 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 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified. 

Findings

The HSE made no submission on section 30(1)(a). In such circumstances, I see no need to consider this exemption further other than to find that it does not apply. 

Section 15(1)(a) - adequacy of search
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of an FOI body's refusal of records under this provision assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records covered by a request or that the requested records do not exist. 

It is not normally the function of this Office to search for records. Furthermore, this Office has said in other decisions that the FOI Act does not require FOI bodies to indefinitely search for records, or account for all gaps that may be identified in records. It should also be noted that the Commissioner has no powers to review the standard of record keeping or to take any action if particular records have not been kept or cannot be found. 

This Office put a number of detailed questions to the HSE about the searches carried out for particular records covered by the applicant's request. On 3 December 2018, the HSE told this Office that searches by the healthcare facility/its head office had resulted in four further files of records being found. It says that while the records are voluminous, a preliminary review suggests that they include some of the records that this Office asked it to comment on, as well as further copies of some records already granted to the applicant. The HSE also says that parts of some of the records may concern matters outside the scope of the applicant's request. 

I note that the HSE is willing to consider the files immediately and that it has told the applicant that she could expect a decision on them in early January 2019. However, the situation is that, because the HSE did not decide on these records on foot of the applicant's request, it effectively refused access to them. In order to enable the HSE to make a fresh decision on the records and to preserve the applicant's various rights of appeal, I must annul the HSE's effective refusal of these records and formally direct it to make a fresh decision on them under the FOI Act. 

The HSE did not make any submission in relation to the searches it has carried out to date or, if relevant, in relation to why certain records may not exist. In any event, the extent to which the four additional files may contain the records the applicant has identified as missing has yet to be determined. It is not possible, accordingly, for me to decide on whether section 15(1)(a) applies in this case. In the circumstances, the only option open to me is to annul the HSE's application of the provision.

I direct the HSE to write to the applicant to outline its understanding of the types of records covered by her request of 29 July 2018 that she says are missing from all of the files it considered to date. I would expect the applicant's reply to describe as clearly and succinctly as possible any other records or types of records covered by her request that she considers to be missing. I note that the particular request made cannot be expanded in scope - that would require a new FOI request. The HSE's decision on the four additional files should clearly explain whether it has generally been able to locate the various records and, if not, why this is the case. The applicant has the statutory rights of review of all aspects of the HSE's decision. However, she would have to make a fresh FOI request if she requires any records that were created since the HSE received her FOI request of 29 July 2018.

Section 29 (deliberative processes) - records 38-39 and 64-67
Section 29(1) provides that an FOI request may be refused (a) if the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations considered for the purpose of these processes), and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest. 

This Office considers that a deliberative process may be described as a thinking process which informs decision making in FOI bodies and would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action. Furthermore, the Commissioner expects the FOI body to show that granting access to the material at issue would be contrary to the public interest by identifying a specific harm to the public interest flowing from release of the records at this point in time, having regard to the content of the various records. 

The HSE says that section 29(1)(a) applies to these records, which it says relate to deliberations on an appropriate response to the applicant's complaint. It says that their disclosure may result in "the chilling of information and advice being given to HSE staff by support or ancillary staff". The HSE also says that while there is a public interest in ensuring openness and accountability for such matters, there is a public interest in ensuring the free flow of information and advice when matters are being deliberated on. 

It seems to me that the matter under consideration in these records is the procedural or administrative matter of how the HSE might appropriately respond to the applicant's complaint. I do not accept that this is a deliberative process. I also note that the HSE did not expand on its reference to "support or ancillary staff" in the context of the records. In any event, I do not accept that HSE staff, whether in support or ancillary or other roles, would refuse to engage with their colleagues other than in accordance with the requirements of their roles. I also note that a small part of record 39 is quoted in the granted record 63, which also refers to the relevant staff. Thus, even if relating to deliberative processes, I do not consider the HSE to have demonstrated to my satisfaction that granting records 38-39 and 64-67 would be contrary to the public interest. I find that the records are not exempt under section 29(1) and I direct that access be granted to them.

I also note that the HSE says that disclosure of the records give a misleading picture of events. However, any possibility that the general public may either misunderstand or draw particular inferences from information granted under FOI is not, of itself, an appropriate reason for me to determine that any record should be withheld. It also seems to me that the other records granted to the applicant will place records 38-39 and 64-67 in the appropriate context. 

Finally, the HSE says that disclosure would also unfairly highlight an HSE staff member "who is carrying out their normal work and duty and is not a decision maker or service head." It does not expand on this argument or claim any relevant exemption(s) and I see no need to consider this assertion further in the circumstances. However, I should make it clear that records created by a member of staff of an FOI body in the course of carrying out their duties are generally excluded from what may be considered to be personal information of that staff member. 

Section 36 (commercial sensitivity) - record 87: remaining sentence
The HSE says that it is "not clear" that the details in this sentence, which concern Mr Y's daily rate and the HSE's estimated timeframe for completion of his review, fall under the scope of the request. Mr Y says that he understands the request to concern records of the care given to a patient and that he does not see how his rate is relevant to such a request. 

I accept that the applicant's request does not specify that she is seeking Mr Y's daily rate. Nonetheless, one part of her request seeks any email, fax or postal correspondence relating to her husband whether internally or externally sent or received since the time of his admission. This is quite a broad request, and the phrase "relating to" itself has a broad meaning. Record 87 is an internal HSE email concerning the review of the applicant's complaint about the care given to her late husband and in this context refers to Mr Y's rate and the timeframe for carrying out that review. Thus, I consider that the entirety of record 87 relates to the applicant's husband and is covered by her request. 

The HSE also says that the sentence is exempt under section 36(1)(b), which 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" and 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 but, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity. 

The HSE says that disclosure of Mr Y's daily rate would give his competitors an unfair advantage in relation to his commercial rates. It also says that disclosure is misleading, in that the circumstances of the review are unique and, for example, involved the engagement of a particular medical professional by the company. It also says that the sentence "refers only to the draft contract and time frames and not the actual length of time the report will take". 

Mr Y says that the disclosure of his daily rate would disadvantage him in competitive tender processes or similar, and may also deter organisations from contacting his company to engage its services. 

As I have already made clear, any possibility of information being misunderstood does not mean that the record is exempt. In any event, I do not see how the daily rate quoted is misleading, particularly in the context of other details granted by the HSE from this record and also when neither the HSE nor Mr Y say that he was, in fact, paid a different daily rate. Furthermore, it is not entirely clear to me how the rate's disclosure could be of use to Mr Y's competitors if such disclosure would also be misleading.

However, the standard required for section 36(1)(b) to apply is relatively low. While the HSE suggests that the rate quoted is based on unique circumstances and includes that of the medical professional (which fee is not stated in the records), I accept that disclosure would give Mr Y's competitors at least some insight into the rate he charged in this instance, which could be of use to them in tender processes or similar. Thus, I accept that disclosure of the rate could prejudice Mr Y's competitive position in the conduct of his business or profession. I find that section 36(1)(b) applies to the rate. However, I see no reason to find the rest of the sentence to be similarly exempt. The fact that it refers to the draft contract/timeframes is not, of itself, a sufficient basis to find it to be exempt. Neither the HSE nor Mr Y has explained how disclosure of the HSE's estimated timeframe for completion of the review could have any impact on Mr Y's commercial position.

Subsection 36(1) is subject to other provisions of section 36 (sections 36(2) and (3)). In my view, only section 36(3) is of relevance in this case. That section provides that a request that would fall to be refused under section 36(1) may still be granted where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request. 

On the matter of where the public interest lies, I have had regard to the comments of the Supreme Court inThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner,[2011] 1 IR 729, [2011] IESC 26) (the Rotunda case). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally. Accordingly, I cannot take into account any private interests that the applicant may have in the release of the withheld information or any dissatisfaction she may have with either Mr Y's review, the HSE's treatment of her complaints or FOI requests generally or the care given to her husband. 

There is a significant public interest in ensuring openness and accountability for the HSE's use of public monies and, as argued by the applicant, in enabling analysis of whether value for those monies was achieved. This public interest would be served to some extent by disclosure of the rate, which would enable the calculation of how much public monies the HSE intended to pay to Mr Y based on the estimated timescale his review would take. 

On the other hand, section 36 itself recognises a public in persons being able to conduct commercial transactions with FOI bodies without fear of suffering commercially as a result. However, decisions issued by this Office have made it clear that those entering into business arrangements with FOI bodies should have a diminished expectation of confidentiality in relation to those arrangements, particularly with respect to the payment to them of public monies. 

It is important to note that the disclosure of a record under FOI is understood, effectively, to be equivalent to its disclosure to the world at large. It seems to me that disclosure of Mr Y's daily rate has more potential to impact on his competitive position than, say, a record stating as a matter of fact the total amount paid to him by the HSE. Therefore, the public interest in protecting the rate is entitled to greater weight and, on balance, in the overall circumstances I consider that the public interest weighs in favour of it being withheld. 

Decision

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

I annul the HSE's refusal to grant access to records 38-39, 64-67 and I direct it to grant access to them. I affirm its refusal to grant the daily rate contained in the remaining sentence in record 87 on the basis that section 36(1)(b) applies and that the public interest weighs in favour of it being redacted. I find that the rest of the sentence in record 87 is not exempt under section 36(1)(b) and I direct that access be granted to it. 

I annul the HSE's effective refusal of the four files that it located during the review. I direct the HSE to undertake a fresh decision making process on the records concerned, and to inform the applicant of the outcome in accordance with the requirements of the FOI Act. It seems to me that, given the HSE's stated intention to consider those records, it will not be necessary for it to wait for the expiry of the statutory appeal deadline to do so. 

I am unable to determine whether the HSE has justified its position that it has taken all reasonable steps to search for records covered by the request of 29 July 2018 or that certain records do not exist. I annul its application of section 15(1)(a). As part of the fresh decision making process on the four additional files, I direct the HSE to write to the applicant to outline its understanding of the types of records covered by her request of 29 July 2018 that she says are missing from all of the files it considered to date. I would expect the applicant's reply to describe as clearly and succinctly as possible any other records or types of records covered by her request that she considers to be missing. The HSE's decision on the four additional files should clearly explain whether it has generally been able to locate the various records and, if not, why this is the case.

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
Senior Investigator