Whether the HSE was justified in refusing access to records relating to a named company and its products under sections 29, 31(1)(a), 36(1)(b) and 37(1) of the FOI Act

6 July 2020

Background

On 9 October 2019, the applicant made an FOI request to the HSE for specific documentation in relation to a named company and its products. The HSE did not issue a decision within the statutory timeframe. On 3 December 2019, the applicant applied for an internal review. On 10 January 2020, the HSE issued a decision. It granted access to some records and refused access to the remaining records on the grounds that they were exempt under sections 29, 31(1)(a), 36(1)(b) and 37(1) of the FOI Act. On 26 February 2020, the applicant applied to this Office for a review of the HSE's decision on the withheld records.

In conducting my review, I have had regard to the correspondence between the applicant and the HSE as outlined above and to the correspondence between this Office and both parties, as well as the content of the records that were provided to this Office by the HSE for the purposes of this review.

Scope of this Review

During the review process, the HSE released further information to the applicant and issued a revised schedule of records. Furthermore, the HSE has confirmed that the withheld information in Pages 5, 35 and 41 is the same as that contained in an email which the HSE released in full to the applicant in Page 4. That information therefore falls outside the scope of this review. The question for me is whether the information which remains withheld is exempt under sections 29, 31(1)(a), 36(1)(b) and 37(1) of the FOI Act. I have adopted the numbering used in the HSE’s revised schedule of records. I note that, of their nature, some of the email strings in the records contain several copies of the same messages.

Preliminary Matters

Before considering the exemptions claimed, I wish to note the following points. First, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach.

Secondly, 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.

Analysis and Findings

Section 31(1)(a) - Legal Professional Privilege

The HSE claims section 31(1)(a) of the FOI Act over the withheld information in Pages 7-10, 11-13 and 14-31. Given their content and my findings on Pages 7-10 and 11-13 under section 36(1)(b) of the FOI Act below, I do not need to consider that information under section 31(1)(a).

Section 31(1)(a) provides that an FOI body shall refuse to grant a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). In deciding whether section 31(1)(a) applies, I must therefore consider whether the record concerned would be withheld on the ground of LPP in court proceedings. LPP 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 (advice privilege); and confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

Having examined the records, I am satisfied that Pages 14-31 disclose confidential communications made between the HSE and its professional legal advisers for the purpose of obtaining and/or giving legal advice.  I therefore find that the HSE was justified in refusing access to these records under section 31(1)(a) of the FOI Act.  This exemption does not have a public interest override.

Section 36(1) - Commercial Sensitivity

The HSE claims section 36(1)(b) of the FOI Act over the withheld information in Pages 1-2, 7-10, 11-13 and 14-31. Given my finding on Pages 14-31 under section 31(1)(a) above, I do not need to consider that information under section 36(1)(b).

Section 36(1)(b) provides that an FOI body shall refuse to grant an FOI request if the record concerned contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation.

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.

Section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than refusing the request (section 36(3) refers).

Submissions

The HSE says that the withheld information names other companies and certain prices for products and services. The companies are potential competitors for the supply of similar products and services to those supplied by the applicant and his company. The HSE submits that this information could be of advantage to a company in competition, especially in a tendering process, as they would know the companies which may tender and what prices they would include in any tendering process.

Analysis and Findings on section 36

The withheld information in Pages 1-2, 7-10 and 11-13 comprises the names of companies and prices quoted to the HSE for those companies’ products or services. The relevant companies are not the company to which the applicant’s FOI request relates. Having regard to the content of the withheld information, I am satisfied that disclosing it to the world at large could prejudice the competitive position of the companies concerned, as it would not otherwise be available to competitors who could use it to their advantage. I find that section 36(1)(b) applies to the withheld information.

Section 36(2)

Section 36(2) 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 this case.

Section 36(3)

Section 36(3) of the FOI Act requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the request.

On the one hand, section 36(1) itself reflects the public interest in protecting commercially sensitive information. I recognise that there is a legitimate public interest in entities being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result. On the other hand, the FOI Act recognises, both in its long title and in its individual provisions, that there is a significant public interest in government being open and accountable. Section 11(3) of the FOI Act provides that public bodies shall, in performing any function under the FOI Act, have regard to a number of matters, including the need to strengthen the accountability and improve the quality of decision-making of FOI bodies.

I take the approach that in attempting to strike the balance between openness on the one hand and the need to protect commercially sensitive information on the other, it is legitimate to consider two things: the positive public interest which is served by disclosure; and the harm that might be caused by disclosure. In relation to the harm which might be caused by disclosure, I have identified the potential prejudice above. As a general principle, I do not believe that the FOI Act was designed as a means by which the operations of private enterprises were to be opened up to scrutiny. I do not consider that releasing the particular withheld information in this case would serve a public interest in transparency around the HSE’s accountability. The HSE’s submission states that the tender process is currently in abeyance and will be recommenced. I therefore note that the records do not relate to successful applicants in a tender process. In the circumstances and on balance, I find that the public interest would not be better served by granting access to the withheld information. I find that the HSE was justified in refusing access to Pages 1-2, 7-10 and 11-13 under section 36(1)(b) of the FOI Act.

Section 37 - Personal information

Section 37(1)

The HSE claims section 37(1) of the FOI Act over the withheld information in Pages 3-3A, 5, 43, 45, 48, 50 and 52-54. Section 37(1) provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term “personal information” as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include “(i) information relating to the educational, medical, psychiatric or psychological history of the individual” and “(ix) a number, letter, symbol, word, mark or other thing assigned to the individual by an FOI body for the purpose of identification or any mark or other thing used for that purpose”.

The withheld information in these pages comprises the names of patients and identification numbers for them. This is information about identifiable individuals other than the applicant which falls within categories (i) and (ix) respectively. I also consider that their names as patients are held by the HSE on the understanding that they would be treated as confidential.

I find that section 37(1) applies to the withheld information. This finding is subject to other provisions of section 37, which I examine below.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply to the information which I have found to be exempt under section 37(1) above. That is to say, (a) it does not relate to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5) - The Public Interest

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the request would benefit the person to whom the information relates.

In relation to the issue of the public interest, it is important to have 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] 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.

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. I must also bear in mind that release under FOI is effectively release to the world at large.

For completeness, I should note that in his application for review, the applicant says that he appreciates that there may be issues involving patient confidentiality, but it should be possible to release the records without revealing patient sensitive information. Having reviewed this particular information, I am satisfied that it would not be practicable to redact it further, as it consists of names and identification numbers.

Having regard to the content of the withheld information, I do not consider that releasing it would serve a public interest in transparency around the HSE. I am not satisfied that the public interest in granting the request outweighs the right to privacy of the individuals other than the applicant. I find that section 37(5)(a) does not apply in the circumstances. It has not been argued that releasing the records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances. I find that the HSE was justified in refusing access to the information withheld under section 37(1) of the FOI Act.

Given my findings, I see no need to deal with the claim for exemption under section 29(1).

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the HSE's decision under sections 31(1)(a), 36(1)(b) and 37(1) of the FOI Act, as outlined above.

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