Whether the HSE was justified in refusing access to certain records relating to a tender process carried out in 2018 for the provision of Home Support Services for older people

5 March 2021

Background

In a request dated 14 May 2019, the applicant sought access on behalf of a network of certain providers to 16 specified categories of records relating to a recent tender process for the provision of Home Support Services (HSS) for older people (“Tender Number 10127”). The HSE granted the request in part, but refused it part under sections 15(1)(a), 30(1), 31(1)(a), 35(1)(a), 36(1)(b), (c), and 37(1) of the FOI Act. The matter previously came before this Office on the basis of a deemed refusal of the applicant’s internal review request. On 21 September 2020, following notice of the HSE’s effective position on internal review, the applicant sought a further review of the matter by this Office.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the submissions made by the HSE and the applicant. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

Adopting the numbering system used by the HSE in its most recently updated schedule of records, a copy of which has been provided to the applicant through its solicitor, this review is concerned with the question of whether the HSE was justified in refusing access to the following:

• Records number 5, 6, 11, 19, 21-38, and 41 (in full);
• Records number 1, 2, 12, 13, 18, and 39 (in part);
• Additional relevant records which have been refused under section 15(1)(a).

It is not within the remit of this Office to investigate complaints or to adjudicate on how FOI bodies perform their functions generally.

Preliminary Matters

There are a number of preliminary matters that I wish to address at the outset.

First, section 25(3) of the FOI act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. For this reason, the description I can give of the contents of the records is limited.

Secondly, section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Lastly, it is important to note that release of records under the FOI Act is regarded, in effect, as release to the world at large given that the Act places no restrictions on the uses to which records released under FOI may be put.  In contrast, in the case of a court order for discovery, records are released subject to an undertaking that they are to be utilised solely for the purposes of the legal proceedings in question; no further use or passing-on is allowed.

Analysis and Findings

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the FOI body shows to the satisfaction of the Commissioner that the decision was justified. The onus is therefore on the HSE to justify its decision to refuse access to the records concerned.

Background

The HSE has explained the background to the request as relating to the tender process undertaken in May 2018 to identify approved providers across the nine Community Healthcare Organisations (CHOs) for the provision of home support services to HSE clients approved after 1 September 2018 where HSE mainstream services are not available. Tender 2018 was initially scheduled to operate until 31 December 2020 but has been extended for a further 12-month period until 31 December 2021.

The tender involved an agreed set of quality specifications as well as capacity and pricing criteria. The intention was to ensure that the HSE would have sufficient capacity from Approved Providers to provide home support services in each of the respective Lots. An analysis was carried out to determine the likely number of Providers required in each Lot/CHO area, with the list of the proposed number of Approved Providers who would be ranked as Tier 1 Approved Providers included as Appendix 1 to the Invitation to Tender (ITT). Tier 2 Approved Providers were meant to form a supplemental pool of service providers who could be called upon to provide required services to the extent that Tier 1 Approved Providers did not or could not fulfil service capacity. “A central feature of the tender structure was that, in the main, service requirements would be delivered from the Tier 1 Approved Provider pool. The HSE did not therefore expressly set out either a maximum or target for the number of Tier 2 Approved Providers required in each Lot/CHO.”

However, it seems that the HSE ultimately realised that the capacity requirements in CHO6 had been underestimated, with the eventual full-year projection for 2018 indicating that there would be approximately 50% more clients than anticipated at the time the ITT was issued. The situation was considered urgent given the absence of any direct provision in CHO6 and therefore the HSE decided effectively to promote the Tier 2 providers to Tier 1. “The number of Approved Providers detailed in Appendix 1 to the ITT was based on information available to the HSE at the time of tendering and given that the position had changed, and in order to meet the necessary service needs, the HSE, by necessity, increased the number of Tier 1 Approved Providers in Lot 6.”

The promotion of the Tier 2 providers to Tier 1 resulted in a complaint from certain of the original Tier 1 providers. The complaint included a threat of litigation, but the HSE and the relevant Tier 1 providers entered into a mediation process that ultimately led to a settlement agreement. The terms of the mediated settlement agreement have not been publicly disclosed. However, the overall average funded rate for home support across both direct and indirect services is made publicly available through, e.g., PQ responses. Record 11(2) reflects that the average funded rate was €24.20 in September 2018. However, the actual rates paid to service providers would vary considerably from the average funded rate depending upon such factors as whether it is for core or non-core service provision.

Section 30(1) – functions and negotiations of FOI bodies

In this context, it is apparent that the HSE regards sections 30(1)(a) and (b) of the FOI Act as widely applicable. Its overarching concern in this case is safeguarding Tender 2018 and thus the supply of care for older people. As the HSE stated in its letter to the applicant dated 21 February 2020, “the documents requested relate to the management of Home Support tendered arrangements, the provision of services and use of budgets and funding. These records form part of the management and deliberative processes of the HSE, and in my opinion, the release of such information would interfere negatively with the function of management of the HSE and in doing so could adversely affect its performance”. The HSE claims that section 30(1) is particularly relevant to records 6, 11, 19, 23, and 30. However, while the HSE has refused access to the records of correspondence with third parties relating to the mediated settlement agreement, and the agreement itself, under sections 31(1)(a) and 36(1), I consider it appropriate to address these records together with records 6, 11, 19, 23, and 30.  

Records 6 and 11 relate to concerns raised by a voluntary not-for-profit provider and contain commercial information about its client base, volume of business and sustainability. Record 19 discusses the potential impact of the decision to expand Tier 1 in CHO6 on the operation of the entire tender. Records 23 and 30 include data analysis regarding CHO6 in the context of concerns over the capacity requirements. The HSE considers that the release of these records would have the potential to have a significant negative impact on the operation of Tender 2018. It also states that the type of data analysis in records 23 and 30 is used to monitor the performance of individual agencies.

In addition, I note that record 21 includes a letter from solicitors acting on behalf of a number of Tier 1 providers raising a formal complaint about the promotion of the Tier 2 promoters. The letter stated that legal proceedings would be initiated against the HSE if certain confirmations were not forthcoming, but the parties agreed to enter into a mediation process with the HSE in order to resolve the dispute. The HSE describes the “Mediation Agreement” that was reached as a “confidential legal document”. In previous decisions, this Office has recognised that confidentiality is generally a significant element in alternative dispute resolution processes. In this case, the applicant’s own comments reflect that the terms of the settlement are regarded by the parties as confidential. For instance, the applicant states that a member of his organisation was informed at a Carer’s Conference in November 2018 that “non-disclosure agreements” exist. While the HSE has claimed that section 15(1)(a) applies to any formal non-disclosure or confidentiality agreement, I accept that an understanding of confidence exists in relation to correspondence concerting the complaint, the mediation process and the settlement reached.

It seems to me that section 30(1)(b) is the relevant provision to consider in the circumstances. Section 30(1)(b) provides that a request for access to a record may be refused where its release could reasonably be expected to "have a significant, adverse effect on the performance by a public body of any of its functions relating to management (including industrial relations and management of its staff)". An FOI body relying on section 30(1)(b) should identify the potential harm to the performance of any of its functions relating to management that might arise from disclosure. Having identified that harm, it must consider the reasonableness of any expectation that the harm will occur, which must be of a “significant, adverse” nature.

As set out above, the HSE encountered difficulties in relation to the supply of HSS for older people in CHO6 following its initial approval under Tender 2018 of Tier 1 Providers in the region. The difficulties included threats to the provision of services by certain non-for-profit providers that had not been successful in the Tender. The difficulties also included an actual threat of litigation from certain Tier 1 providers following the promotion of the Tier 2 providers.

I accept that it was important to the HSE’s effective management of the supply of services for it to receive and consider detailed information about the risks faced by providers that may have not been able to continue to serve the community. I also accept that it was important for the HSE to assess the overall risks involved and to try to manage the situation in a manner that did not unduly undermine the Tender and thus the provision of services for older people in CHO6 and other areas of the country. Managing the situation included responding to the threat of litigation in a considered manner that ultimately led to the mediated settlement agreement. Moreover, the data analysis was part of the risk assessment exercise carried, with the relevant records including detailed operational performance data about identified individual service providers and the shortfalls in essential services that were expected to occur. The contents of these and other records at issue reflect the volatility of the situation and the genuine concern that the HSE had in relation to ensuring the continuity of essential services.

The Tender remains in operation, and I accept that the risks involved are by no means historic. In the circumstances, I consider that it is reasonable to expect that disclosure of the information in the records concerned to the world at large, including competitors of the relevant service providers, could result in substantial disruption to the HSE’s management of services in CHO6 and elsewhere. Therefore, subject to the public interest test, I am satisfied that section 30(1)(b) applies to records 6, 11, 19, 21, 23, 25 (in part – the letter dated 15 October 2018), 26 (in part – the letter dated 17 October 2018), pages 4-5 of record 35, and pages 3-7 of record 38.

Section 30(2) provides that section 30(1)(b) shall not apply where the public interest would, on balance, be better served by granting than by refusing to grant access to the requested record. The applicant contends that there is a strong public interest in the release of the records. He states that, to the extent that the release of records will have a negative impact on the HSE, it will arise through the intended operation of the FOI Act, shining a light in this case on what is considered to be a flawed procurement process. However, in a judgment delivered on 25 September 2020, The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 57) (“the eNet case”)), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”. It also indicated that the public interest recognised by the exemption “may be normally served by the operation of the exemption itself, which provides for the refusal of an FOI request”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

In this case, the HSE has disclosed a significant amount of information about the Tender through FOI and otherwise. Among the documents released in this case is an anonymised table of tender operational performance data showing the number of home care packages offered and the number of such packages not accepted by Approved Providers whether part of Tier 1 or not. It has also released a number of records about the Tender, including records relating to the expansion of Tier 1 (e.g., records 7-8, 10, 14-17). I find that the publicly available information about the Tender has served the public interest in openness and transparency to a certain extent. While it may be true that the HSE could be faulted for the miscalculation in the capacity requirements in CHO6, it does not follow that it would serve the public interest to disclose information that could reasonably be expected to have a further negative impact on the HSE’s management of the Tender and thus the provision of care for older people in the region and beyond. I find that the public interest would not, on balance, be better served by the release to which section 30(1)(b) applies.

Section 31(1)(a) - legal professional privilege

The HSE claims that section 31(1)(a) applies to the following records: 21-22, 24-29, 31-33, 35-38, and 41. I have addressed record 21 and parts of records 25, 26, 35, and 38 above. I note that, with the exception of record 33, the records include communications with the HSE’s legal advisers. They also include communications with third parties in the context of the threat of litigation that ultimately led to the mediated settlement agreement. The communications from the third parties were forwarded to the legal advisers for advice.

Section 31(1)(a) is a mandatory exemption which protects records that would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables a client to maintain the confidentiality of two types of communication:

(a) 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
(b) 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).

The Commissioner accepts that records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) where they form part of a continuum of correspondence that results from the original request for advice.  He has adopted this approach having regard to the following comments by Mr. Adrian Keane in "The Modern Law of Evidence" (4th Ed.), Butterworths, 1996, at pp. 521-522:

"Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice.  In Balabel v Air India (1988) Ch. 317; [1988] 2 All E.R., 246, CA., ...[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings, there will be a continuum of communications and meetings between the solicitor and client; and where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach."

The applicant rightly points out that legal professional privilege does not automatically apply to correspondence from third parties where the HSE simply forwards on such correspondence for their views. As the applicant states: “If that were the case then any FOI body could avoid the FOI Act by simply forwarding all records in its possession to external counsel for their views, thereby attaching a badge of privilege to all such records.” The correspondence as originally received from third parties is not in fact a confidential communication between solicitor and client. However, in the context of this case, it would disclose the substance of certain requests for legal advice. Nevertheless, as discussed above, I consider that section 30(1)(b) is the more appropriate exemption to consider in relation to the records of correspondence with third parties concerning the process that ultimately led to the mediated settlement agreement.

Record 35 includes correspondence with third parties that was forwarded to legal advisors but which is not listed in a stand alone manner in the updated schedule. This correspondence was previously numbered as records 7(ccc) and 9(a) to (c) in the schedule provided with the effective position on internal review. I will address these records below using the previous numbering system. Based on my examination of the records, I find that section 31(1)(a) applies to the following:

• Records 22, 24, 27, 28, 29, 31, 32, 35, 36, 37, 41 (in full);
• Records 25 (apart from the letter dated 18 October 2018); 26 (apart from the letter dated 17 October 2018); 38 (pages 1-2).

However, I find no basis for concluding that section 31(1)(a) applies to record 33.

Section 35(1) – information obtained in confidence

Section 35(1) states that "Subject to this section, a head shall refuse to grant an FOI request if-

“(a) the record concerned contains information given to an FOI body, in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or (b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law".

The confidentiality exemption generally does not apply to a record prepared by a staff member of an FOI body or a service provider “in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider" (section 35(2) refers – emphasis added). In addition, section 35(1)(a) does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the request (section 35(3) refers).

The HSE has expressly invoked section 35(1)(a) in relation to records 5 and 12. Record 5 is an email dated 21 September 2018 from another provider that had been unsuccessful in the Tender at the time outlining the impact of the outcome on its operations. Record 12 includes a copy an email dated 23 September 2018 that also forms part of record 6, i.e. the email from the provider setting out concerns regarding its sustainability. Record 12 also contains internal discussions regarding the HSE’s proposed response to the provider, but the HSE has agreed that the draft response contained in the record may be released. The applicant argues that section 35(2) is relevant and prevents reliance on section 35(1). However, the providers were unsuccessful tenderers at the time who were raising concerns about the outcome of the Tender. They were not writing to the HSE in the course of the performance of functions as service providers. I therefore accept that section 35(1) may apply to their correspondence.

Having regard to the contents and the circumstances, I accept that that an understanding of confidence existed in relation to the correspondence. As indicated above, I also accept that it is important for the HSE to receive detailed information about any potential impact on the provision of home help services. While disclosure is unlikely to deter unsuccessful tenderers from writing to the HSE in future, I accept that providers would be less likely to include detailed information about their operations and sustainability in such correspondence. On the contrary, I consider that providers would be more likely to resort to formal complaints procedures or legal remedies if they feel unable to engage in candid discourse with the HSE on a confidential basis. This Office has long recognised a public interest in the proper preservation of confidences. I therefore find that the public interest favours withholding the third party correspondence and that section 35(1)(a) applies.

However, I agree with the applicant that section 35(2) is relevant to the HSE’s internal discussions regarding its proposed response to the provider, i.e. the first five pages of record 12. The HSE has agreed with this Office that record 12 may be released in part, but it is not clear whether its decision to release applies to the first five pages in full. I therefore consider it appropriate to make a finding on the matter for the sake of clarity. The name of the provider has already been disclosed by the HSE in its schedule of records. The content of the proposed response is an explanation of the HSE’s approach to Tender 2018. In the circumstances, I am not satisfied that section 35(1) applies to record 12 apart from the email from the provider.

Section 36(1) - commercially sensitive information

The HSE has refused access to the following records in full or in part under sections 36(1)(b) and/or (c) of the FOI Act:  5-6, 11-12, 18, 21-39, and 41. Section 36(1)(a) is also claimed in relation to record 33(1). These records include the correspondence with third parties referred to above, internal correspondence discussing the concerns raised by the third parties, the mediated settlement agreement and related records, hourly and 30-minute service rates, and operational performance data relating to third party service providers.

The HSE maintains that the tender rates are regarded as highly confidential and commercially sensitive. The rates are shared within the HSE on a restricted basis and are not made publicly available. However, as noted above, average funded rates for home support across both direct and indirect services are provided in PQ responses. The records of operational performance data include a breakdown by service provider of the number of packages and hours accepted and refused. The HSE considers that disclosure would reveal details of each company’s business, which could give a competitor an insight into its operations.

Section 36(1) provides that a request shall be refused if the record concerned contains “(b) 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, or (c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates". Section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than by refusing the request (section 36(3) refers).

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 Supreme Court confirmed in University College Cork v The Information Commissioner [2020] IESC 58 that the standard of proof in relation to the second limb of section 36(1)(b) is “very low”. Nevertheless, 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 its competitive position.

I have addressed most of the third party correspondence, the records related to the mediated settlement agreement, and the operational performance data above. The tender rates at issue are set out as hourly and 30-minute service rates, broken down by such factors as daytime rates, evening rates, and Sundays/Bank Holiday rates. In Case 98188 (Mr. Mark Henry and the Office of Public Works), which involved tender-related records, this Office accepted that details of a company's internal business as well as its understanding of and approach to a particular project are generally regarded as commercially sensitive and may be entitled to confidential treatment even following the award of a contract. Thus, this Office generally accepts that disclosure of a company's hourly or daily rates could be harmful to its competitive position because of the insight it would give competitors into the company's business affairs (see, e.g., Case 170016 (Mr X and The Department of Education and Skills)). Thus, I accept that disclosure of the tender rates in this case could prejudice the competitive position of the providers concerned.

In addition, I note that record 34 relates to correspondence with a newly appointed Tier 1 provider that was still experiencing operational difficulties. Record 35 includes similar such correspondence dated 7 November 2018 (record 9(b) as numbered in the previous schedule). Having regard to the contents of the correspondence and the insight that it could provide regarding the viability of the providers, I accept that the correspondence also qualifies for exemption on the basis of the second limb of section 36(1)(b). I do not, however, see any basis for finding that the following internal correspondence is commercially sensitive:

• Record 33 – the email of 10 September 2019 and the email of 24 October 2018 16:05;
• Record 33(1) – page 1;
• The letter dated 5 October 2018 included in record 7(cccc) (as numbered in the previous schedule) notifying the original Tier 1 Approved Providers, in a generic manner, of the expansion of Tier 1;
• Records 9(a) and (c) (as numbered in the previous schedule).

The applicant maintains that there is a strong public interest in the release of the records for the purpose of ensuring the transparency of the HSE’s processes. However, as noted above, general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Moreover, the HSE has addressed the general public interest of openness and transparency to some extent by making the average funded rates for home support services available to the public. I am therefore satisfied that section 36(1)(b) applies to the redactions made from record 18; record 33 (apart from the email of 10 September 2019 and the email of 24 October 2018 16:05); page 2 of record 33(1); record 34; the redactions made from record 39; and record 9(b) (as numbered in the previous schedule).

Section 37(1) - personal information

Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information. Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including "(iii) information relating to the employment or employment history of the individual".

Certain information is excluded from the definition of personal information. Paragraph II of the definition provides that where the individual is or was a service provider, the definition does not exclude the name of the individual or information relating to the service or terms of the contract or anything written or recorded in any form by the individual in the course of and for the purpose of the provision of the service. A similar exclusion for staff members of FOI bodies is found at Paragraph I. However, the exclusions to the definition do not exclude all information relating to staff members of FOI bodies or service providers. Individual staff members are still entitled to the right to privacy generally.

The HSE has redacted the names of individual staff members of the third party service providers under section 37(1) of the FOI Act, including from record 13. Record 12 also includes the name of the individual who wrote to the HSE on behalf of the provider that had been unsuccessful in the Tender at the time. Record 9(c) (as numbered in the previous schedule) includes an individual’s name and email address. The HSE considers that the exclusion to the definition of personal information relating to service providers applies to the name of Approved Providers but not the individual employee names. In the circumstances of this case, I accept that the organisations listed in, e.g., record 17 as Approved Providers, are the relevant service providers, not the individual staff members who represented the organisations in correspondence with the HSE. I therefore find that the exclusion does not apply and that the names, including the name as it appears in the first part of the email address, are personal information within the meaning of the Act. I am also satisfied that none of the exceptions set out in section 37(2) applies and that the public interest in releasing the names does not outweigh the privacy rights of the individuals concerned.

Search issue

The applicant disputes that all relevant records have been located, in particular, the records referred to in Appendix A of the review application. Section 15(1)(a) provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. The evidence in such cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body insofar as those practices relate to the records in question.

In its submissions, the HSE has provided details of the steps taken to search for any additional records relevant to the original request. As this Office has already provided the applicant with the relevant details, I do not consider it necessary to repeat them in full here.

In writing to the applicant for the purpose of updating him on the relevant issues arising from the HSE’s submissions, the Investigator noted that Appendix A does not identify missing records in a helpful manner. Rather, it seems to speculate regarding the existence of additional records or raise questions based on the information provided in the released records in a manner that appears to go beyond the scope of the original request, which was focused on CHO 6 and the decision to promote the Tier 2 Providers to Tier 1. The Investigator also noted that some of the items referred to in Appendix A relate to records which are not missing but rather have been identified and either released or withheld.

In his response, the applicant disagrees that Appendix “does not identify records in a helpful manner”. He also asks that this Office specify exactly what elements of Appendix A are listed in the HSE’s schedule of records as having been released or withheld.

Section 15(1)(a) does not require either the FOI body or this Office to identify where exactly records that are alleged to be missing can in fact be located in the schedule of records. It merely requires that all reasonable steps have been taken to ascertain the whereabouts of records falling within the scope of the request. However, establishing that missing records are not in fact missing obviously supports a finding that section 15(1)(a) applies.

Thus, for instance, I note that Appendix A refers to correspondence relating to complaints or concerns raised by certain named providers. Such correspondence has been addressed above in relation to section 30(1)(b) and section 35(1)(a), with certain relevant records having been released (records 5 to 13 on the schedule refers). Appendix A also seeks records relating to the question of admitting providers to Tier 2, but this appears to go beyond the scope of the request, though, as noted above, the HSE has stated that it did not set out either a maximum or target for the number of Tier 2 Approved Providers. I also note that records 16 to 19 relate to the decision to expand Tier 1. Appendix A also refers to correspondence received from “each of the CHOs providing the data included in table 16.2” and other information regarding other CHO areas, but this again goes beyond the scope of the original request. Information relating to home care packages is included in the data analysis contained in records 23 and 30. The “draft documentation” referred to at the last bullet point of Appendix A is addressed above in relation to section 31(1)(a). In short, I am satisfied that the HSE has taken all reasonable steps to locate the relevant records falling within the scope of the applicant’s original request and that section 15(1)(a) applies to any additional records that he may regard as “missing”.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the HSE. I affirm its decision to refuse access to the records at issue for the reasons stated above with certain exceptions. I direct that access be granted to the following subject to the relevant redactions:

• Pages 1-5 of record 12 (subject to redaction of the individual’s name);
• Record 33 – the email of 10 September 2019 and the email of 24 October 2018 16:05;
• Record 33(1) – page 1;
• The letter dated 5 October 2018 included in record 7(cccc) (as numbered in the previous schedule) notifying the original Tier 1 Approved Providers, in a generic manner, of the expansion of Tier 1;
• Records 9(a) and (c) (as numbered in the previous schedule), subject to the redaction of the individual’s name, including as it appears in the first part of the email address.

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 applicant 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.

 

Stephen Rafferty

Senior Investigator