Whether the HSE was justified in refusing access to various records relating to a dispute between the applicant company and the HSE on the basis of sections 29(1), 30(1)(b), 30(1)(c), 31(1)(a), 31(1)(b), 32(1)(a)(iv), 36(1)(b), 36(1)(c) and 40(1)(d) of the FOI Act

11 August 2022

Background

Unless otherwise stated, all references to the applicant in this case shall be taken as referring to the applicant organisation or its solicitor, as appropriate.

By way of background, the HSE implemented a partnership arrangement with 18 private hospitals to make their facilities and capacity available to meet the challenges of the Covid-19 pandemic in April 2020. The HSE and the private hospitals each signed an agreement known as a Heads of Terms to record the principal terms and conditions of the arrangement. The applicant in this case is one such independent hospital provider (the Hospital), which entered into an arrangement with the HSE. The Hospital and the HSE are currently involved in a legal dispute concerning some aspects of the Heads of Terms. It is my understanding that the matter was heard by the Commercial Court earlier this year, but no judgment has issued to date.

In a request dated 13 April 2021, the applicant sought access to various records held or under the control of the HSE, its legal advisers or any of its service providers, relating to the Heads of Terms entered into on 3 April 2020 between the HSE and others, and/or in respect of costs owed by the HSE to the Hospital and/or claimed by the organisation pursuant to the Heads of Terms, and various records regarding the dispute between the parties, particularly but not limited to records dated between 1 May 2020 and 30 June 2020.

On 30 April 2021, the HSE informed the applicant that its request fell to be refused on the basis of section 15(1)(c) of the FOI Act. The HSE stated that due to the scale and nature of the records sought, the retrieval, examination and evaluation of those records would cause a substantial and unreasonable interference with or disruption to the work of the HSE in the relevant functional areas. The HSE suggested that the applicant review its request with a view to narrowing the scope. The HSE offered assistance in this regard. On 12 May 2021, the HSE refused the applicant-�s request on the basis of section 15(1)(c) as it had received no response to its earlier letter.

On 4 June 2021, the applicant requested an internal review of the HSE-�s decision and submitted a reformulated FOI request seeking access to all records held or under the control of the HSE, its legal advisers or any of its service providers, in relation to costs owed by the HSE to the Hospital and/or claimed by the Hospital pursuant to the Heads of Terms, dated between 1 May 2020 and 30 June 2020. It then specified six different categories of records it sought in particular, relating to the HSE-�s decision(s) not to reimburse the Hospital for specified costs, to include factual information considered in making any such decision(s), and the reason for any such decision; relevant invoices submitted by the Hospital; internal and external HSE correspondence about these matters; and records relating to meetings held by the HSE in relation to the dispute.

The HSE-�s response on 2 July 2021 indicated that it was treating the applicant-�s reformulated request as a new FOI request. The applicant did not object. The HSE issued a decision on the narrowed request on 22 July 2021, outlining that the request once again risked being refused on the basis that granting the request would cause a substantial and unreasonable interference with or disruption of work of the relevant area(s) of the HSE (section 15(1)(c) refers). The HSE offered to assist the applicant in reformulating its request so that it would not be refused as voluminous.

The applicant submitted a further narrowed request on 30 July 2021, seeking access to emails and softcopy memoranda dated between 1 May 2020 and 30 June 2020 held by the Office of the Chief Financial Officer or Acute Operations in relation to:

1. the decision(s) by the HSE not to reimburse the Hospital for costs incurred during the term of the Heads of Terms (including certain specified costs), the factual information considered in making any such decision(s), and the reason for any such decision(s); and/or
2. the decision(s) by the HSE to withhold payment to the Hospital and certain other specified matters, the factual information considered in making any such decision(s), and the reasons for any such decision(s).

Following further correspondence between the parties, the HSE issued a decision on 27 September, 2021. It identified 33 records relating to the applicant-�s request, which it refused to release on the basis of sections 29(1), 30(1)(b), 30(1)(c), 31(1)(a), 31(1)(b), 32(1)(a)(iv), 36(1)(b), 36(1)(c) and 40(1)(d) of the FOI Act. The applicant requested an internal review of that decision on 29 September 2021. The HSE-�s internal review decision on 26 October 2021 affirmed its original decision to refuse access to all of the records sought on the same grounds.

On 6 December 2021, 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. In carrying out my review, I have had regard to the correspondence between the parties as set out above, the submissions made by the applicant in its application for a review to this Office and by the HSE in support of its decision. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

Following correspondence from this Office during the course of this review, the HSE confirmed that it was no longer relying on section 31(1)(b) in support of its decision to refuse access to the records sought. It also indicated that it was willing to release records 11, 11.1, 21 and 22 to the applicant. I note that the applicant is likely to already have these in its possession. However, if the HSE has not already done so, I expect it to make arrangements to release these records now.

In response to a query from this Office, the HSE also clarified its position that record 10.2 (a second attachment to record 10, which was not listed on the records schedule provided) was outside scope as it did not relate to the particular matters specified by the applicant in its final reformulated FOI request. Having carefully reviewed the record concerned, I accept that it does not directly relate to the particular decisions specified out in the applicant-�s reformulated request, although it seems to me to concern related matters. However, as the record in question was a letter from the HSE to the Hospital, I am satisfied that the applicant is likely to already have access to this record.

Accordingly, this review is concerned solely with whether the HSE was justified in refusing to grant access to the remaining records concerned on the basis of sections 29(1), 30(1)(b), 30(1)(c), 31(1)(a), 32(1)(a)(iv), 36(1)(b), 36(1)(c) and 40(1)(d) of the FOI Act.

Analysis and Findings

As noted above, the HSE has refused access to all of the records sought on the basis of sections 29(1), 30(1)(b), 30(1)(c), 31(1)(a), 31(1)(b), 32(1)(a)(iv), 36(1)(b), 36(1)(c) and 40(1)(d) of the FOI Act. As the records mainly relate to matters which are the subject of a legal dispute between the parties, it appears to me section 31(1)(a) is of most relevance. Accordingly, I will consider the applicability of section 31(1)(a) to the records concerned in the first instance.

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

Section 31(1)(a) provides for the mandatory refusal of a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege.

The HSE argued that section 31(1)(a) applies to all of the remaining records at issue in this case.

Legal professional privilege 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).

The concept of -�once privileged always privileged-� applies to advice privilege, and therefore, unless otherwise lost or waived, lasts indefinitely. The Commissioner also takes the view that privilege attaches to records that form part of a continuum of correspondence that results from an original request for advice. Furthermore, while the Commissioner-�s approach to the disclosure of a record containing confidential legal advice to a third party is that it generally amounts to a waiver of privilege, he takes the view that this may not be the case where there is a "limited disclosure for a particular purpose, or to parties with a common interest" (common interest privilege). Section 31 (1)(a) does not require consideration of the public interest.

The HSE has indicated that it is relying on both limbs of LPP in respect of each of the records withheld.

The records at issue comprise correspondence between the HSE, its legal advisor and a third party for the purpose of obtaining and giving legal advice on the matters arising; and internal correspondence relating to the request for, and receipt of, that legal advice. The HSE stated that the third party concerned provides professional accounting services to the HSE, and that it provided relevant information to its legal adviser in response to enquiries arising on foot of the HSE-�s request of legal advice. The HSE also claimed common interest privilege in terms of the records relating to correspondence between itself, its legal adviser and the third party in question.

Having carefully examined the records in question, I am satisfied that they comprise confidential communications between the HSE and its professional legal adviser and/or a third party with a common interest for the purpose of obtaining and giving legal advice, and/or form part of a continuum of correspondence resulting from the original request for advice. Accordingly, I find that section 31(1)(a) applies and that the HSE was justified in refusing access to the records concerned on that basis.

As I have found section 31(1)(a) to apply to all of the records withheld, I am not required to consider the other exemptions relied upon by the HSE.

Section 13(4) and the motive or perceived motive of an applicant

While I have found the records concerned to be exempt from release on the basis of section 31(1)(a) of the FOI Act, I would like to address another matter which arose in this case.

I note that, in its various acknowledgement letters to the applicant (dated 27 April, 8 July and 5 August 2021), the HSE stated as follows: -�[p]lease confirm that the records being sought will not be used by your clients in the ongoing litigation-� in which your client was refused access-� to similar categories of records. While under Section 13(4) of the FOI Act the HSE must disregard any reasons your clients give or are believed to have for seeking the records, this confirmation is necessary in order to consider the application of the FOI Act to your clients-� request-�.

It appears that the applicant did not address these comments until its letter dated 6 August 2021. In this response, it stated that did not think that such confirmation could in fact be -�necessary in order to consider the application of the FOI Act-� to the request, -�particularly where the FOI Act does not require requesters to stipulate the reasons for their request, or afford any discretion to FOI bodies who seek such reasons-�. The applicant also argued that its right to access records under the FOI Act was -�entirely separate and distinct from any recourse they might have in the Courts-�.

The applicant referred to a previous decision of this Office,Ms ACM and the Midland Health Board (Case Number 99175), available on our website atwww.oic.ie. That decision dealt with section 22(1)(b) of the 1997 FOI Act (now section 31(1)(b) of the FOI Act 2014). The decision stated as follows: -�-� The fact that there may be another procedure through which Mr ACM may seek access to the records (other than pursuant to an FOI request) does not mean that his right of access to the record under the FOI Act no longer applies. Indeed, I note that in his judgement in the case of EH and The Information Commissioner, [High Court, Unreported, 4 April 2001], Mr Justice O'Neill stated "I think it will undoubtedly be the case that as the public grow accustomed to the opportunities of disclosure contained in the [FOI] Act, as time goes by and where litigation may be contemplated or indeed where it has even occurred they may opt to seek disclosure of documents via the Act rather than via the traditional method of discovery."

If the HSE responded to the applicant-�s letter of 6 August, a copy has not been provided to this Office. In any event, in its internal review decision dated 26 October 2021, the HSE noted that the applicant-�s original and reformulated FOI requests had been made in the context of High Court proceedings taken against the HSE. It referenced the legal dispute between the parties and stated that as part of the proceedings, the applicant sought discovery of documents from the HSE, which it noted was refused by the High Court. The HSE also stated that it understood that the applicant was appealing the High Court-�s decision on his discovery application, and that this appeal was currently under judicial consideration. However, during the course of this review, the applicant informed this Office that it did not appeal the High Court-�s decision in this regard.

The HSE went on to state that the applicant-�s FOI request covered records which were -�markedly similar-� to the records which the High Court had found to be -�not relevant or necessary-� for the relevant proceedings. It also stated that -�[d]espite several requests, [the applicant-�s solicitor had] refused to confirm whether [his] client intends to use records released under the FOI request in the High Court proceedings.-� While the HSE noted that it was obliged under section 13(4) of the FOI Act to disregard any motives for making a request subject to the FOI Act itself, it went on to state that -�this information is relevant when considering the application of exemptions and the public interest test-�.

In its submissions to this Office, the HSE once again noted that under the FOI Act it is obliged to disregard any private motives an applicant may have for seeking records. However, it also stated that -�section 13(4) provides that this is subject to the FOI Act itself-�, and said that -�this context was and continues to be relevant when considering the application of exemptions and public interest tests-�. In this regard it referred to a previous decision of this Office which considered the then equivalent of section 13(4) - Case No.99001, Ms ACF and the North Eastern Health Board, available on our website atwww.oic.ie.

It seems to me that the HSE is arguing that an applicant-�s motive or perceived motive for seeking access to records under FOI is always relevant when considering the application of exemptions to the records sought.

However, as noted by both the applicant and the HSE, section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Therefore, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.

To be clear, this Office-�s position, which has been upheld by the courts, is that the applicant-�s reasons for seeking records under FOI are irrelevant to the consideration of the various exemptions in the Act, except where relevant in terms of the consideration of the public interest; or in relation to particular exemptions such as sections 15(1)(g) (frivolous and vexatious), 37(5)(b) (public interest test concerning access to personal information) and 37(8) (access to the personal information of minors, incapacitated individuals and deceased persons by certain categories of requesters).

The HSE has not relied on sections 15(1)(g) or 37 in this case. This means that neither I nor the HSE can have regard to the applicant's motives for seeking access to the records at issue in this case, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the records where the Act requires a consideration of the public interest.

Furthermore, it is important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the FOI Act places no restrictions on the type or extent of the subsequent use to which a record may be put. On that basis, I do not consider it appropriate for an FOI body to seek to place restrictions or conditions on the use of records requested under FOI.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE-�s decision to refuse access to the remaining records on the basis of section 31(1)(a) of the FOI Act. I find that the HSE was justified in refusing access to the records sought on the basis of legal professional privilege.

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.
 

Deirdre McGoldrick
Senior Investigator