Whether the HSE was justified in refusing access to the copy of a draft agreement between the HSE and private hospitals under sections 30(1)(b) and (c), 31(1)(a), 35(1)(a) and (b) or 36(1)(c) of the FOI Act
OIC-93834-R9D6C6
28 September 2021
Background
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
Preliminary Matters
Secondly, 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.
Analysis and Findings
Section 30 - Functions and negotiations of FOI bodies
Section 30(1)(c)
Section 30(1)(c) provides that an FOI body may refuse to grant an FOI request if access to the record could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body.
It is important to note that this exemption does not contain a harm test. It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc. There is no requirement to take a view on the consequences of the disclosure of those positions or that disclosure would have an adverse effect on conduct by the Government or the FOI body of its negotiations. However, this matter may be relevant to the public interest test in section 30(2). An FOI body relying on section 30(1)(c) should identify the relevant negotiations at issue. Records relating to past, present or future negotiations may be protected under section 30(1)(c).
The HSE says that the Covid 19 pandemic is an ongoing and unparalleled crisis and the public health response in Ireland is dynamic, changing to address threats to public health on a daily basis. It says that in March 2020, the government directed the HSE to implement a partnership arrangement with the private hospitals. It says that the government concluded the partnership arrangement in June 2020 and mandated the HSE to negotiate a new, separate deal with the private hospitals. The HSE says that the Heads of Terms governed the relationship between the HSE and the private hospitals, while Record 2 is a draft document. It says that it reflects the positions of the parties at a point in time, upon which the parties were unable to reach consensus. In its submissions, the HSE says that it is in ongoing negotiations to manage the public health response to Covid 19, both with the private hospitals and with other providers. It says that this involves seeking to access the capacity of private hospitals in relation to Covid 19 and non-Covid 19 related care. It says that releasing the record will disclose negotiating positions to present and future negotiating partners.
I have examined the content of Record 2. I accept that it could reasonably be expected to disclose negotiating positions taken by the HSE. I am therefore satisfied that section 30(1)(c) applies. I am then required to apply the public interest balancing test under section 30(2).
On the one hand, section 30(1)(c) itself reflects the public interest in protecting positions taken for the purpose of any negotiation carried on by or on behalf of the Government or an FOI body. In this case, I accept that there is a strong public interest in protecting the positions taken by the HSE for the purpose of negotiations to manage the public health response to the Covid 19 crisis.
On the other hand, I must consider whether there is a public interest in disclosing the specific content of this record. In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, it is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (the Enet judgment,) the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest. Baker J. stated that “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. 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.
The HSE says that there is a strong public interest in being able to access the capacity and skills of private hospitals in the context of Covid 19. It says that disclosing HSE negotiating positions and the importance it gives to such positions would disadvantage it, impacting its ability to achieve the best value for money and thus maximise capacity. The HSE says that it is engaged in ongoing negotiations with private hospitals and other providers in relation to further Covid 19 surge capacity. It says that Record 2 is an unsigned draft document and does not govern the use of public funds. It says that the use of public funds in the context of the relationship between the HSE and private hospitals is governed by the Heads of Terms, which is already in the public domain.
The applicant says that there is an overwhelming public interest in disclosure of this record given there was no procurement process and because of the exceptional nature of the commercial arrangement, which has now concluded.
Record 2 is a draft agreement, which is marked “subject to contract”. It contains footnotes by the parties’ legal advisers. Some key parts of the agreement remain blank. The HSE says that the agreement which governed the relationship between the HSE and the hospitals is Record 1, which is in the public domain. In that regard, I note that a HSE media release of 2 June 2020 states: “the decision to proceed with a partnership was reflected in a set of Heads of Terms (HoT) negotiated by HSE collectively with 18 private hospitals through the Private Hospitals Association (PHA) and signed on 3 April 2020. The HoT has legal effect and was placed before the Oireachtas. The HoT provides the basis upon which services are provided and overseen, with specific provisions for verification of activity level and cost. The duration of the agreement is three months minimum, effective from 30 March to 30 June, with an option to extend for up to five months.”
I have had regard to the specific content and the context of Record 2 and the parties’ submissions. In deciding where the public interest lies, I consider it relevant that Record 2 is a draft document which, according to the HSE’s submissions, did not and does not govern the relationship between the HSE and the private hospitals. This is borne out in the draft nature of the record. As mentioned above, many of the headings in Record 2 contain minimal or no content. In consideration of that content, in accordance with the Enet judgment, I find no relevant public interest in granting access to it that on balance outweighs the public interest in protecting the positions taken by the HSE in ongoing or future negotiations to manage the public health response to the continuing Covid 19 crisis.
I also believe that the public interest has been served to an extent by disclosing the Heads of Terms, which governed the agreement (Record 1). I am therefore satisfied that the public interest would on balance be better served by refusing to grant the FOI request. I find that the HSE was justified in refusing access to Record 2 under section 30(1)(c).
Given this finding, I am not required to consider the exemptions claimed under sections 31(1)(a), 35(1)(a) and (b) or 36(1)(c) of the FOI Act.
For completeness, I note that the applicant asked this Office to consider section 22(15) of the FOI Act. Section 22(15) provides that nothing in the FOI Act shall prevent the Commissioner from taking into account that the record concerned is no longer commercially sensitive. In this case I have found that the requirements of section 30(1)(c) are met, therefore I do not need to consider whether section 36 applies.