Whether the HSE was justified in its decision to part grant a request to which section 38 of the FOI Act applies, concerning access to information relating to the applicant

1 August 2019

Background

This review arises from a decision made by the HSE to part grant 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 10 June 2019 the HSE received a request for copies of all internal audits carried out between June and December of 2018. At that stage, the HSE had already notified the applicant that it was preparing audit reports for general release under the FOI Act and that a particular report concerning the applicant was subject to release. It afforded the applicant one week to submit comments on the matter.

On 13 June 2019, the applicant’s solicitors sought an extension of the period within which to make a submission, the HSE extended the time for submitting comments by one further week.

On 20 June 2019 the applicant’s solicitors made a submission on the matter to the HSE.

On 28 June 2019, the Health Service Executive notified the applicant of its decision to part grant the request. It notified the requester of its decision on 8 July 2019. The applicant sought a review by this Office of that decision on 10 July 2019.

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 HSE consultation that took place between the HSE and the applicant was part of a general process it undertakes periodically of preparing audit reports for general release. As such, the notification was not issued as part of the section 38 notification process.

Indeed, the notification that issued to the applicant issued before the request had submitted his FOI request. Furthermore, the notification did not explain that the HSE was of the view that the report at issue was one to which one or more of the relevant exemptions applied but fell for release in the public interest.

In the circumstances, I have strong concerns about the jurisdiction of this Office to conduct a review in circumstances where the section 38 requirements have not been complied with. As such, I consider that the most appropriate course of action to take is to annul the decision of the HSE 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.

As the HSE is aware, the Central Policy Unit of the Department of Public Expenditure and Reform has published a step by step guide to the application of section 38 (including some letter templates) which is available at www.foi.gov.ie. This Office has also published guidance on section 38 on www.oic.ie, which 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