Whether the HSE was justified in refusing access to a spreadsheet containing information relating to various hospital consultants, including their category of appointment, under section 37 of the FOI Act

28 November 2019

Background

In an FOI request to the HSE dated 12 March 2019, the applicant, an insurer, sought access to an updated schedule of information that it said had been supplied to it in 2009. The information sought is as follows: consultant name, specialty, category of appointment, hospital sessions, location and Medical Council number.

The HSE’s decision dated 9 April 2019 refused the applicant’s request under section 37(1) of the FOI Act (personal information). The applicant sought an internal review on 2 May 2019. The HSE’s internal review decision of 29 May 2019 affirmed its decision on the request. On 11 July 2019, the applicant applied to this Office for a review of the HSE’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and contacts between this Office, the HSE and the applicant. I have had regard to the contents of the requested record and to the provisions of the FOI Act.

Scope of the review

My review is confined to whether the HSE was justified in refusing to grant the applicant’s FOI request.

Findings

Potential Discontinuance of Review

The record at issue is a spreadsheet containing the requested information in respect of over 3,000 consultants.

In the early stages of this review I gave careful consideration to whether I should exercise my discretion to discontinue it under section 22(9)(a)(vii) of the FOI Act. Section 22(9)(a)(vii) provides that the Commissioner may discontinue a review under this section if he is, or becomes, of the opinion "that accepting the application would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of work of his … Office."

The FOI Act gives third parties a right to make submissions to the Commissioner. Their submissions must be taken into account before a decision is made that might affect their interests. I note the applicant’s view in relation to section 37 that granting the request will not affect the interests of any consultant because it is merely seeking to “ensure compliance with their obligations as outlined in their contract” so that it may “verify their positions and … allow us to accurately remunerate in line with the HSE contracts”. However, I am satisfied that any decision by me to direct release of the record on the basis that it does not contain personal information, or on the basis of the public interest, would have affected the interests of the consultants concerned. It is clear that seeking the views of over 3,000 individuals and considering the various arguments received would take considerable resources within the Office and affect work on other cases. 

Given the decision that I have arrived at in this case, I decided that it was not necessary to invoke the Commissioner’s powers under section 22(9)(a)(vii) of the FOI Act. However, if similar circumstances present in a future case I would again consider doing so.

Section 37(1)

In 2008, the HSE and the relevant representative bodies agreed the terms of a new contract for consultants (the 2008 contract). The contract is in the public domain and is available at (https://www.hse.ie/eng/staff/resources/terms-conditions-of-employment/ccontract/consultant-contract-2008-25th-june-2019.pdf). I note that part 21 sets out the requirements attaching to particular contract types. As the applicant says, consultant salary details are also in the public domain (see https://www.hse.ie/eng/staff/benefitsservices/pay/consolidated-salary-scales-1st-april-2019.xls).

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information.

The applicant says that the HSE is an FOI body and that it is making a request for information in line with the terms of the FOI Act. It says that the consultants are considered to be public servants because they are paid from public funds. It also says that certain employment details are routinely available to the public in the interests of ensuring transparency in the expenditure of public monies. It refers to the Commissioner’s stated view that persons in receipt of remuneration sourced from public funds should have a diminished expectation of privacy in relation to that remuneration.

The applicant says that the record does not contain any identifiable confidential personal information and “could not and would not be used in order to identify a specific individual.” It refers to the definition of personal information at section 2 of the FOI Act. It says that the information is not only known to the individual consultants, in that it must be known (presumably by their employers) to ensure that they are compliant with the terms of their contracts. The applicant says that the information requested relates only to the provision of public services. It says that it is not seeking information concerning any individual consultant’s employment such as employment status, dates of employment, confirmation of their point on any particular scale or personnel records i.e. records reflecting the performance of their functions.

The applicant says that it is solely looking to decipher which category of employment applies to each consultant from a defined set of categories. It says that it needs the details to ensure that consultants are complying with the requirements of their contracts and billing for private practice appropriately so that it may “accurately remunerate in line with the HSE contracts”. Although its internal review application refers to details on the Department of Health’s website concerning salaries applicable to each category type, the applicant also says that no personal salary details would be revealed on foot of granting the request because it is not privy to the band or scale applying to each consultant. The applicant also refers to a comment in the HSE’s decision saying that the details are not fully accurate. It says that it will accept this because it is aware that categories of employment are subject to change.

Finally, the applicant accepts that the exclusions to the definition of personal information (also in section 2 of the FOI Act) do not apply to all information about public servants or service providers. However, it notes that the Commissioner has said that the exclusions are intended to ensure that section 37 will not be used to exempt the identity of a person in the context of a particular position held or in carrying out official functions.

The HSE says that the details in the spreadsheet amount to the personal information of the consultants concerned. It also says that some of the consultants concerned are employed by voluntary hospitals and community health organisations and thus are not all HSE employees. My findings below apply to the information relating to all consultants in the spreadsheet regardless of employer.

The fact that the applicant is making an FOI request to an FOI body does not of itself mean that the request must be granted. I note that the applicant’s request indicates that a similar FOI request it made to the HSE in 2009 was granted. This does not create a binding precedent. Neither does it necessarily mean, as also argued by the applicant, that the HSE does not hold the information the subject of this FOI request in confidence. It is also the case that while certain employment information concerning public servants or service providers may be made publicly available, this does not of itself require that this FOI request must be granted.

Section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons (whether stated or suspected) for the request. For the purposes of the FOI Act, personal information is defined in section 2 as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including (i) information relating to the educational history of the individual and (iii) information relating to the employment or employment history of the individual. It is well settled that where information can be classified as one of the 14 examples of personal information, there is no need for the requirements of the definition to also be met. Section 2 goes on to list exceptions in relation to certain information about staff of FOI bodies and service providers.

It is hard to understand why the applicant is of the view that the details do not identify specific individuals. Having examined the spreadsheet, I am satisfied that it contains information of a type that is captured by the above examples of what comprises personal information about identifiable individuals.

Furthermore, while the applicant does not consider the request to concern personnel records, I note that it says that it needs the information to enable analysis of whether the consultants are complying with the terms of their contract regarding the breakdown of public/private practice. Section 11(6)(a) of the FOI Act is concerned with personnel records of individuals who are members of staff of an FOI body. It defines personnel records as records "relating wholly or mainly to one or more of the following, that is to say, the competence or ability of the individual in his or her capacity as a member of staff of an FOI body or his or her employment or employment history or an evaluation of the performance of his or her functions generally or a particular such function as such member". A further example of personal information that is set out in section 2 is “(v) information relating to the individual falling within section 11(6)(a)". In the circumstances, it seems to me that the spreadsheet contains information relating to any consultants who may be employees (as opposed to service providers) that is captured by this example of personal information.

Because I am satisfied that the requested information is captured by various examples of what comprises personal information about identifiable individuals, it is not necessary for me to consider whether the information also meets the requirements of the definition of the term “personal information”. However, it strikes me as reasonable to accept that the exact nature of a consultant’s contract with an employer is information that, in the ordinary course of events, would be known only to the individual, or his or her family or friends. This is not changed by the fact that the consultant’s employer would also be party to such information for compliance or other purposes. 

Section 2 of the FOI Act also provides that certain types of information about an individual FOI body employee are excluded from the definition of "personal information", as follows:

              "(I) in a case where the individual holds or held -

 

              (A) office as a director of,

              (B) a position as a member of the staff of, or,

   (C) any other office, or any other position, remunerated from public funds in,

an FOI body, 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,"

Applying the above qualifications to the circumstances of this case, it is clear that the following do not constitute personal information: the name of the individual in the context of being a member of staff of the HSE or other public service employer; information regarding the office, position or functions of that member of staff; the terms upon which the member of staff holds office or occupies a position; and records created by that employee in the course of and for the purpose of, the performance of his/her functions. Section 2 contains similar exclusions where service providers are concerned.

I have examined the particular information carefully to establish whether it falls within the exclusions. Firstly, the requested information includes Medical Council numbers and specialties. Such details are clearly not covered by the exclusions. Although this information is published by the Medical Council, I do not believe it is appropriate to me to consider it in isolation from the rest of the requested information.

I accept that, as a general proposition, the terms on which an employee holds their position with an FOI body and the functions they carry out are among the exclusions listed. In the case of these individual contracts however, it seems to me that the matter is more complex. At least partly because of the history of consultant contracts, the contract type of each identifiable individual is, depending on individual circumstances, a hybrid of functions and terms capable of disclosing various information about consultants. Disclosing the individual consultant’s contract type is capable of disclosing information relevant to his or her compliance with the public:private practice terms of that contract. In my view, disclosure of the current contract type would enable identification of consultants who have changed their contract type, which the 2008 contract permits. This amounts to further information about the individual’s employment history. It is also clear that disclosure of a consultant’s specific contract type shows how much private practice he or she is entitled to carry out.

Having considered the matter, I find that the spreadsheet discloses personal information about the consultants that is not captured by the exclusions to the definition of personal information where public servants or service providers are concerned. I find that the record is exempt under section 37(1) of the FOI Act.

Section 37(5)(a) - the public interest

Subsection (1) is subject to other provisions of section 37 (sections 37(2) and (5)). In my view, only section 37(5)(a) is of relevance in this case. That section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual(s) to whom the information relates should be upheld. It is relevant that the release of a record under the FOI Act is effectively the same as releasing it to the world at large.

On the matter of where the public interest lies, I have had regard to the comments of the Supreme Court in The 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 the consideration of public interest tests generally.

Furthermore, McDermott J., in his December 2016 judgment in the case of F.P. and the Information Commissioner [2014 No. 114 MCA] ("the F.P. case") which was subsequently upheld by the Supreme Court, said that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that "the ‘public interest’ in granting access is not to be determined on the basis of the appellant’s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.”

The applicant says that the public interest weighs in favour of granting the request. It says that the category of appointment directly influences the rules for private patient billing by hospitals and consultants. It says that it needs a high degree of transparency and accountability to confirm that each consultant is remunerated and is billing for private professional work services in accordance with their HSE contract type. It says that this is in accordance with stated public policy (i.e. the HSE’s contract rules and the Department of Health’s strategic plans). It refers to information in the public domain regarding concerns over compliance by consultants in public hospitals with their contacts It says that refusing the request is detrimental to the public interest and will place it at a significant financial and moral hazard and risk, in that as an insurer it could be deemed to be supporting billing practice not performed as appropriate by the consultant under their contract of employment. It says that granting the request will enhance transparency and allow it and its members to be aware of whether they are potentially liable for charges.

I should make it clear that any general interest that the public may have in knowing which details concern which consultant does not equate to there being a "true public interest" in release of the identifying details. FOI is concerned with the activities of public bodies generally and is not necessarily a means by which all information about the activities of individual public servants or service providers is intended to be made known to the public at large.

Section 11(3) requires an FOI body, when performing any function under the FOI Act, to have regard to such matters as "achieving greater openness in the activities of FOI bodies"; "promoting adherence by them [i.e. FOI bodies] to the principle of transparency in government and public affairs"; to "the need to strengthen the accountability and improve the quality of decision making of FOI bodies"; and the need to inform comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the "role, responsibilities and performance of FOI bodies." The emphasis in section 11 is clearly on the activities of FOI bodies, not on the activities of identifiable public servants or service providers.

This is not to suggest that, in some instances, information relating to the performance of individual public servants or service providers should not be released in order to promote the openness and accountability of an FOI body. Different types of personal information about a public servant or service provider would have varying degrees of sensitivity. Furthermore, an FOI body would not necessarily be required to provide such a level of detail that would enable individual public servants to be identified.

I note that the HSE says that it is responsible for regulating contracts of medical consultants which permits them to work privately based on their assigned contract. There is a public interest in promoting openness and accountability for the HSE’s performance of its functions in this regard. While the public interest has been served to a certain extent by the information already in the public domain concerning the 2008 contract generally, I accept that it would be further served by granting the applicant’s request. I should also say that while the public interest in promoting openness in relation to in relation to the expenditure of public monies may be served to some extent by the disclosure of the record, I am not satisfied in the overall circumstances of this case that it would be served to such an extent that as a matter of course it requires disclosure of the requested information in the public interest. 

It is clear from the F.P. case that I cannot have regard to the applicant’s stated reasons for making the request. These appear to me to be primarily private interests as opposed to true public interests on the lines envisaged by the Rotunda case. While the applicant stresses the use to which it would put the information, release of it under FOI is unconditional and could not be confined to the insurer. I note that the applicant says that there exists a stated public policy of requiring consultants to comply with their public contracts. While I have not been referred to any particular such policy, I would accept that compliance is desirable as a matter of good governance and management of the health service. I am not convinced however that release of the record at issue to the world at large under FOI is necessarily the best or the only way of ensuring that consultants comply with their contractual obligations. In any event, even if this argument does amount to a true public interest weighing in favour of granting the request, it does not, of itself, determine the matter.

Both 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). 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. The applicant seems to be of the view that the requested information is not sensitive. I do not agree. I consider that a significant invasion of privacy would occur if the requested information about each consultant was placed in the public domain. In this regard, I note that the HSE says that it does not record or hold any details of the consultants’ private practice arrangements. While the HSE may not hold detailed information in this regard, the requested record nonetheless contains information showing the amount of such practice that is permitted by the relevant contracts and also enables insight into other matters concerning individual consultants that I have already described above.

Having considered the weight of the public interest factors in favour of, and against release, I find that the public interest in favour of release does not outweigh the public interest in protecting against the invasion of the individual consultants' rights to privacy that would arise from release of the spreadsheet.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s refusal to grant access to the spreadsheet under section 37(1) of the FOI Act.

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.

 

 

Elizabeth Dolan

Senior Investigator