Whether HIQA was justified in its decision under section 36(1)(b) (commercial sensitivity) of the FOI Act to grant a request to which section 38 of the FOI Act applies for records relating to notices of proposal to cancel registration of nursing homes

13 November 2019

Background

This review arises from a decision made by HIQA to grant a request to which section 38 of the FOI Act applies. Section 38 applies to cases where the FOI body has formed a view that the record(s) in question are exempt under section 35 (confidential information) and/or section 36 (commercially sensitive information) and/or section 37 (personal information) but that the record(s) should be released in the public interest.

Where section 38 applies, the FOI 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 FOI body, may apply directly for a review of that decision to this Office.

In a request dated 20 February 2019, a requester made an FOI request to HIQA for the following in relation to nursing homes: 1) the total number of centres issued with notice of proposal to cancel registration in 2018; 2) a list of all such centres; 3) a list of all centres issued with notice of proposal to cancel registration and whose registration was cancelled by HIQA in 2018; 4) the total number of centres which at the date of the request are the subject of a proposal issued to cancel registration in 2018 and 5) a list of the centres in 4). 

HIQA consulted with the relevant nursing homes, including the applicant, under section 38 of the FOI Act. On 25 April 2019, it decided to grant the request. The applicant sought a review by this Office of HIQA’s decision (Case No 190218). The Senior Investigator’s decision in that case, dated 24 May 2019, found that HIQA had not consulted with the applicant within the timeframes set out in section 38 of the FOI Act. He directed HIQA to carry out a fresh decision making process on the request that complied with the requirements of section 38.

Accordingly, on 4 July 2019, HIQA consulted again with the applicant under section 38 of the FOI Act. The applicant responded on 16 July 2019. On 19 July 2019, HIQA decided to grant the request. On 31 July 2019, the applicant made an application to this Office for a review of HIQA’s decision to grant access to parts of a record affecting its interests.

I have now decided to conclude my review 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, HIQA, the applicant and the original requester. I have had regard also to the record considered by HIQA and to the provisions of the FOI Act.

Scope of Review

One record is covered by the request. This review is confined to whether HIQA’s decision to grant access to the parts of the record affecting the applicant’s interests was justified under the FOI Act. Section 22(12)(a) of the FOI Act provides that the FOI body's decision to grant a request is presumed to have been justified unless the person to whom the records relate shows to the Commissioner's satisfaction that the decision was not justified.

Preliminary Matters

The applicant says that this Office’s decision in Case No 190218 did not require HIQA to reconsider the request. As this Office’s Investigator explained to the applicant, the decision in Case No 190218 found that HIQA had not complied with the timeframes for consultation set out in section 38 of the FOI Act and, as a matter of fact, it directed HIQA to make a fresh decision on the request that complied with the requirements of section 38. That decision made no finding on HIQA’s substantive decision to grant the request. I must make it clear that while HIQA did not comply with the strict procedural requirements of section 38 in its initial processing of the request, this does not of itself require me to find in this review that the request should be refused. Neither, despite the applicant’s objections, can I find information to be exempt and direct that part of a record be withheld unless I am satisfied that the FOI Act allows me to do so.

As detailed in its application to this Office, the applicant’s main argument appears to be that the FOI request should have been made to the Office of the Chief Inspector of Social Services (the Office of the Chief Inspector) rather than to HIQA and that the Health Act 2007 establishes these as two separate FOI bodies. This Office’s Investigator sought submissions from HIQA on this point. It is the HIQA’s position that the Office of the Chief Inspector exists within HIQA and that the Chief Inspector is an employee of HIQA. She then put the details of HIQA’s submission to the applicant, who did not respond.

Having carefully considered the matter, including the applicant’s position, I am proceeding to make a decision on the review on the basis that HIQA accepted the requester’s FOI request made to it and considered that it holds the record falling within the scope of that request. I note the provision at section 2(5) of the FOI Act that a reference to a record held by an FOI body includes a reference to a record under the control of that body. While the applicant argues that the Commissioner should give a decision as to whether or not the Office of the Chief Inspector is an FOI body, this is not the issue to be addressed in this review. I do not agree that it is relevant and I make no finding on whether the two entities are “separate” FOI bodies or not in circumstances where, as a matter of fact, HIQA – an FOI body under section 6 of the FOI Act – made a decision on a request for a record that it considers to have under its control. The Commissioner has no function in relation to internal arrangements for the holding of information between the two entities.

The applicant also says that the request should not be granted because HIQA created the record after it received the request of 20 February 2019. HIQA says that it created the record further to the requirements of section 17(4) of the FOI Act. Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. The reasonable steps are those that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request. I am satisfied that the record is covered by the request.

Findings

At the outset, it is useful to refer to some general matters. No party to a review has a veto over release of records. Any review conducted under section 22 of the FOI Act is de novo, which means that it is based on the circumstances and the law as they pertain at the time of this decision. Finally, while the FOI Act requires the Commissioner to provide reasons for decisions, section 25(3) of the FOI Act also requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record.

Section 36 – commercially sensitive information

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". This Office 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, this Office takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.

In the High Court case of Westwood Club v The Information Commissioner [2014] IEHC 375 Cross J. held that it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. A party opposing release should explain why disclosure of the particular records could prejudice their financial position. Furthermore, a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. In the Supreme Court case of Sheedy v the Information Commissioner [2005] 2 I.L.R.M. 374, [2005] 2 IR 272, [2005] IESC 35 Kearns J. stated that "[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard”. 

Section 36(2) provides for a number of exceptions to section 36(1), while section 36(3) provides that a record to which section 36(1) applies may be granted if the public interest would, on balance, be better served by granting than refusing to grant the request.

HIQA says that further to its first consultation under section 38 of the FOI Act, the applicant argued that the relevant information is commercially sensitive and relates to certain legal matters. However, HIQA does not consider the information to be exempt under section 36(1)(b) of the FOI Act, having regard to various details relating to the applicant that are in the public domain. I cannot describe the publicly available details here in case this would disclose the content of the record insofar as it concerns the applicant and breach the requirements of section 25(3) of the FOI Act. However, I am satisfied that the contents of the record are indeed in the public domain. The Investigator referred the applicant to the details concerned and invited it to explain why, in the circumstances, the parts of the record that concern its interests are exempt under section 36 of the FOI Act, or indeed, section 35 of the FOI Act. The applicant did not make any such arguments.

I have considered the information already in the public domain and the parts of the record that relate to the applicant. It is well settled that it is not sufficient to simply assert that information is commercially sensitive for the purposes of section 36(1)(b). In the circumstances, I see no reason to consider that the disclosure of the excerpts concerned could prejudice the competitive position of the applicant in the conduct of its business. Neither have I any basis on which to find that the information meets the higher test in the second part of section 36(1)(b). I find that the parts of the record that relate to the applicant are not exempt under section 36(1)(b) of the FOI Act. I also note that the applicant was invited to explain why section 35 might apply to the relevant information and that it did not do so. Accordingly, I have no basis on which to find that section 35 of the FOI Act applies.

Given my finding that the requirements of the exemptions have not been met, it is not necessary to address the public interest balancing test. In this regard, I note that the Investigator put it to the applicant that, although the public interest did not fall to be considered where a record was not exempt in the first place, HIQA’s view was that the public interest in ensuring openness and accountability would outweigh the public interest in protecting against any commercial harm that may be caused by the release of the record in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm HIQA’s decision to grant access to the parts of the record that relate to the applicant and direct it to release the relevant parts.  

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