Whether the HSE was justified in refusing access to records relating to a named nursing home for the period 27 March 2020 to 15 May 2020

4 May 2023

Background

In a request dated 3 September 2020, the applicant sought access to all correspondence, including letters, emails, phone calls, video conference calls and reports addressed to, including or involving a named HSE employee, concerning a named nursing home, and including all correspondence from named members of the staff of the nursing home. The applicant specified that the request was to cover the period 27 March 2020 to 15 May 2020. In a decision dated 2 July 2021, the HSE refused the applicant-™s request, citing sections 30(1)(b) and 37(1) of the FOI Act as grounds for its decision. On 13 July 2021, the applicant sought an internal review of the HSE-™s decision on her request. In its internal review decision of 2 September 2021, the HSE affirmed its original decision. On 9 November 2021, the applicant applied to this Office for a review of the HSE-™s decision.

During the review, the HSE reverted to indicate that it had undertaken a further examination of the records that it had initially identified as falling within the scope of the applicant-™s request. Following this further review, the HSE identified a number of records that had already been part-released (with redactions) to the applicant separately on foot of previous decisions of this Office. It also released, in full or in part, a number of additional records that had not been considered in previous applications made by the applicant to this Office.

In respect of the records it continued to withhold, the HSE relied again on sections 30(1)(b) and 37(1) of the FOI Act. In the revised schedules of records provided by the HSE subsequent to its further examination of the records, it also cited two additional sections of the FOI Act, namely sections 36(1)(b) and (c), as further grounds on which to withhold certain of the records. Moreover, the HSE stated that certain records were outside the scope of the applicant-™s request. As the applicant had not had an opportunity to consider the applicability of sections 36(1)(b) or (c), or the HSE-™s argument that certain records sought were outside the scope of her request, I wrote to the applicant to put her on notice of these matters and to invite her to make any further submissions that she wished in relation to same. The applicant subsequently made further submissions and these have been considered in full.

In addition, in the course of conducting this review I formed the opinion that certain information contained in the records had the potential to affect the interests of two named third parties. Accordingly, I contacted the third parties to bring the matter to their attention, and to invite them to make any submissions that they wished. No submissions were received from either third party.

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 applicant-™s comments in her application for review and her subsequent submissions, and to the material submitted by the HSE in support of its decision. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

The HSE identified 14 separate categories, or -œfiles-, of records as being relevant to the request, and numbered each record individually within each category. In this decision, I have retained this numbering system and so will refer to -œFile 1, Record 1-, -œFile 1, Record 2-, and so on.

Preliminary matters

I wish to note at the outset that a review by this Office is considered to be -œde novo-, which means that it is based on the circumstances and the law as they pertain at the time of the decision. Accordingly, in light of the -œde novo- nature of our reviews, it is possible that a change in the legal or factual circumstances since the previous decisions of this Office referred to above might lead me to conclude that additional sections of records previously considered should now be released (or that they should be released in full). I have considered the matter in full and am satisfied that there has been no such significant change in circumstances that would cause me to release additional material in the records already part-released to the applicant on foot of her separate applications to this Office. Accordingly, this review will focus on the records withheld by the HSE that are particular to this review, and not those that fall within the scope of this review but which have already been part-released to the applicant on foot of previous reviews.

Scope of Review

This review is solely concerned with whether the HSE was justified, under sections 30(1)(b), 36(1)(b), 36(1)(c) and 37(1) of the FOI Act, in withholding, in whole or part, records sought by the applicant. The review will also focus on whether the HSE was entitled to regard certain records as outside the scope of the request.

Analysis and Findings

Record deemed to be out of scope by the HSE

In the schedule of records provided to this Office, the HSE identified a number of records that it partly withheld from release based on its view that the records fell outside the scope of the applicant-™s request. These were as follows:

• File 4, record 1, pages 1-5 -“ minutes of a meeting dated 6 April 2020
• File 4, record 2, pages 6-9 -“ minutes of a meeting dated 7 April 2020
• File 4, record 3, pages 10-13 -“ minutes of a meeting dated 8 April 2020
• File 4, record 4, pages 14-16 -“ minutes of a meeting dated 9 April 2020
• File 4, record 5, pages 17-19 -“ minutes of a meeting dated 10 April 2020
• File 4, record 6, pages 20-24 -“ minutes of a meeting dated 14 April 2020
• File 4, record 7, pages 25-28 -“ minutes of a meeting dated 15 April 2020
• File 4, record 8, pages 29-32 -“ minutes of a meeting dated 16 April 2020
• File 4, record 9, pages 33-37 -“ minutes of a meeting dated 17 April 2020
• File 4, record 10, pages 38-40 -“ minutes of a meeting dated 20 April 2020
• File 11, record 1, pages 1-4 -“ Midlands Louth Meath Covid-19 Response Team notes dated 8 May 2020
• File 11, record 2, pages 5-9 -“ Midlands Louth Meath Covid-19 Response Team notes dated 12 May 2020
• File 11, record 3, pages 10-14 -“ Midlands Louth Meath Covid-19 Response Team notes dated 15 May 2020
• File 11, record 4, pages 15-18 -“ Midlands Louth Meath Covid-19 Response Team notes dated 19 May 2020
• File 11, record 5, pages 19-22 -“ Midlands Louth Meath Covid-19 Response Team notes dated 22 May 2020
• File 11, record 6, pages 23-25 -“ Midlands Louth Meath Covid-19 Response Team notes dated 26 May 2020
• File 11, record 7, pages 26-29 -“ Midlands Louth Meath Covid-19 Response Team notes dated 28 April 2020
• File 11, record 8, pages 30-32 -“ Midlands Louth Meath Covid-19 Response Team notes dated 5 May 2020
• File 12, record 5, pages 7-10 -“ minutes of teleconference dated 30 March 2020.

I have examined the portions of the records that the HSE deemed out of scope and find as follows. The applicant-™s FOI request was very clear in seeking access to records relating to a specific nursing home. In my view, the material that the HSE has identified as being outside scope does not, with a number exceptions that I set out below, relate to that nursing home. The HSE was therefore justified in withholding this information on the basis that it was outside the scope of the request.
The exceptions to this finding are:

• File 4, record 6, page 22 -“ redactions made at lines 19 and 21
• File 4, record 7, page 26 -“ redaction made at line 26
• File 4, record 9, page 35 -“ redaction made at line 20
• File 4, record 10, page 39 -“ redactions made at line 27
• File 11, record 2, page 8 -“ redaction made at line 33
• File 11, record 4, page 18 -“ redaction made at line 28
• File 11, record 5, page 22 -“ redaction made at line 35
• File 11, record 6, page 26 -“ redaction made at line 9
• File 11, record 8, page 32 -“ redaction made at line 26.

I consider that this information relates to the named nursing home and falls within the scope of the request, and of this review. I note that the HSE has also cited various exemptions of the FOI Act as grounds to withhold this information that I have determined is within scope. Below, I examine the extent to which those exemptions were correctly applied.

In addition, I wish to note that I am of the view that certain other redactions that the HSE made to the records relate to information that I consider to be outside the scope of the request, albeit that the HSE did not specifically argue that this was the case. The reason I make this finding is that the redacted information, which the HSE sought to exempt under various provisions of the FOI Act, does not relate to the nursing home named in the FOI request. I make this finding in respect of the following records:

• File 6, record 6, pages 40-41, 43, 45-47, 49, 51-52 and the last redaction made to page 54
• File 8, record 1, page 1
• File 13, record 1, first redaction to page 17
• File 13, record 2, pages 17 and 19-20
• File 13, record 4, third and fourth redactions to page 20
• File 14, record 4, pages 25 and 30
• File 14, record 9, first and second redactions to page 141.

It is therefore unnecessary for me to examine the extent to which the exemptions cited by the HSE apply to this information in the above records.  

Section 37(1)

The HSE cited section 37(1)) of the FOI Act as a basis for withholding many of the records at issue. Due to the numerous records in respect of which the HSE relied on section 37(1), for ease of reference I have listed them in full at Appendix 1, attached to this decision.

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition.

In addition, Paragraph (I) of section 2 of the Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid ...". Similar information is excluded in the case of service providers under Paragraph (II) of section 2.

I have considered the material in the records that the HSE has withheld pursuant to section 37(1) and find as follows. Firstly, I accept that the majority of the material redacted from the records is the personal information of individuals for the purposes of section 2 of the FOI Act. However, I do not accept that this is the case in respect of all the information in respect of which the HSE cited section 37(1). I find that certain information in the records is not personal information and as such falls outside the scope of section 37(1). In particular, noting that I have found the remainder of the following records to be outside the scope of the request, I find that the redactions made to the following records do not relate to an identifiable individual and do not otherwise fall within the definition of personal information in section 2:

• File 4, record 6, page 22 -“ redactions made at lines 19 and 21
• File 4, record 7, page 26 -“ redaction made at line 26
• File 11, record 2, pages 8 -“ redaction made at line 33
• File 11, record 4, page 18 -“ redaction made at line 28
• File 11, record 5, page 22 -“ redaction made at line 35
• File 11, record 6, page 26 -“ redaction made at line 9
• File 11, record 8, page 32 -“ redaction made at line 26.

Furthermore, a number of the records contain information that has been redacted under section 37(1) but which, it seems to me, relates to HSE staff engaged in their official functions. It therefore falls within the exception to the definition of personal information in section 2 of the FOI Act, and is outside the scope of section 37(1). Noting again that I have found the remainder of these records to be outside the scope of the request, the specific records in respect of which I make this finding are:

• File 4, record 9, pages 35 -“ redaction made at line 20
• File 4, record 10, page 39 -“ redactions made at line 27

In addition, a number of other records -“ specifically, File 3, record 1, and File 5, record 5 (page 5) -“ contain information that has been redacted and that relates to an employee of the Health Information and Quality Authority (HIQA) in the performance of their official functions. HIQA is itself an FOI body, and accordingly this information falls within the exception to the definition of personal information. Therefore I consider that the redactions made to File 3, record 1 (except the sixth and eighth redactions, which relate to separate individuals) fall outside the scope of section 37(1) of the FOI Act.  I make the same finding in respect of the first two redactions to File 5, record 5, at page 5, and the first two redactions to File 5, record 5, at page 6.

For the avoidance of doubt, I find that the remaining information relating to identifiable individuals that has been redacted from these records, that does not relate to an employees of the HSE or other FOI bodies in the performance of their official functions (such as names, health status, employment history, personal mobile telephone numbers and personal email addresses), is personal information for the purposes of section 2.

In relation to the information I have identified as personal for the purposes of section 2 of the FOI Act, the matter does not end there as 37(1) is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply. 

Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply.

In relation to the applicability of section 37(5)(a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual or individuals to whom the information relates. 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, which 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. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and -œthere 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.

In relation to the issue of the public interest, it is also 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 true public interest should be distinguished from a private interest.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy).  It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore 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.

The information that I have identified in the records as falling within the scope of section 37(1) of the Act is of an inherently private nature. Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find that the public interest in granting access to the information at issue does not, on balance, outweigh the right to privacy of the relevant individuals. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that the HSE was justified in refusing access, under section 37(1) of the FOI Act, to the information I have identified as comprising personal information.

Section 30(1)(b)

The HSE cited section 30(1)(b) of the FOI Act as a basis for withholding the following records:

• File 1, record 5, page 22 -“ email correspondence dated 13 April 2020 regarding volunteer support for the named nursing home
• File 12, record 1, page 2 -“ email correspondence dated 3 April 2020 regarding a teleconference on the named nursing home
• File 12, record 2, page 4 -“ email correspondence dated 2 April 2020 regarding a teleconference on the named nursing home
• File 12, record 3, page 5 -“ email correspondence dated 30 March 2020 of teleconference in relation to the named nursing home
• File 13, record 8, pages 38-39 -“ email correspondence dated 31 March 2020 regarding support for the named nursing home
• File 14, record 6, pages 35-49, 53-54, 58-59, 62-63, 66, 70, 73-76, 81, 84-85, 89-90, 93-94, 98 and 101-102 -“ email correspondence dated 23 April 2020 regarding staffing in the named nursing home.

Section 30(1)(b) provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff).

Section 30(1)(b) is a -˜harm based-™ exemption, i.e. it applies where the granting of access to a record can reasonably be expected to cause a particular prejudice or harm. An FOI body seeking to rely on section 30(1)(b)  must show how the harm anticipated could reasonably be expected to result from the release of the record(s). In particular, the body should identify the potential harm to the performance by an FOI body of any of its functions relating to management that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur.

Furthermore, an FOI body seeking to rely on section 30(1)(b) should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. A claim for exemption under these provisions must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. A claim for exemption pursuant to paragraph (b) which is class-based is not sustainable e.g. a claim for exemption for -˜any-™ draft report.

When invoking section 30(1)(b), the FOI body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Establishing "significant, adverse effect" requires stronger evidence of damage than, for example, "prejudice" (as per section 30(1)(a) of the FOI Act). In other words, not only must the harm be reasonably expected, but it must also be expected that the harm will be of a significant nature.

The wording of section 30(1)(b) makes it clear that the words "industrial relations and management of its staff" are, in the context of that section, a subset of "functions relating to management". Other than the specific references to industrial relations and the management of staff, section 30(1)(b) does not indicate what other management functions are embraced by the term "functions relating to management". This Office has held that management is a word of wide import and that it is apt to cover a variety of activities of an FOI body apart from management of staff and industrial relations.

In its submissions to this Office, the HSE argued that section 30(1)(b) applied on the basis that there was a need to safeguard the flow of information between the HSE and the nursing home. It argued that disclosure of this information could prejudice the sharing of information which was necessary for the management of services generally and in particular in an emergency situation such as the Covid-19 pandemic. The HSE also argued that the release of the information in the records could adversely affect the prospects of staff continuing to volunteer to work within private nursing homes in a crisis scenario. Furthermore, it stated that it needed the space to consider all information in developing a management response to a crisis situation such as the Covid-19 pandemic, and in doing so it required private nursing homes to continue to provide information to it.

I have considered the arguments of the HSE carefully in relation to the material it seeks to continue to withhold under section 30(1)(b), and find as follows. First of all, I accept that the HSE has identified a function related to management for the purposes of section 30(1)(b). Broadly speaking, this function might be described as the management of the private nursing home in the emergency scenario of the Covid-19 pandemic. I also accept that the HSE has identified potential harms that it considers may flow from the release of the information, and that these harms, should they transpire, would be significant.

I am less convinced that the HSE-™s expectation that the harms it has identified will occur can be described as reasonable. It seems to me that the crisis that enveloped the nursing home was a specific result of the Covid-19 pandemic. I certainly accept that some of the information in the records reveals the unprecedented challenges facing the nursing home during the pandemic, and the difficulties that this presented to the HSE in managing the situation. However, in my view, it is a leap to suggest that the release of the information would result in, for example, HSE staff refusing to volunteer in a future emergency scenario. Similarly, in my view it does not follow that the release of the information would prevent a nursing home from sharing information with the HSE in a future crisis. I cannot see a link between the information in the records that the HSE seeks to withhold and the potential harms it has identified. The difficulties in nursing homes generally -“ in Ireland and beyond -“ as a result of the Covid-19 outbreak has been extensively covered and is a matter of common knowledge. There seems to me to be little in the specific information in the records that would be likely to result in the harms identified by the HSE. In those circumstances, I find that section 30(1)(b) does not apply to exempt the material in the records.
I note that certain of the records that the HSE sought to exempt from release under section 30(1)(b) of the FOI Act contains personal information relating to identifiable individuals. I find that that information is exempt from release under section 37(1), based on my analysis above of that provision of the FOI Act. The relevant information is:

• File 1, record 5, page 22 -“ personal information relating to an employee of the nursing home at lines 5-7 of page 22; mobile number of an individual at line 24 of page 22
• File 14, record 6 -“ Names and email addresses of individuals at lines 14-19, 25-26, 28-29 and 31 of page 74.

Section 36(1)

The HSE cited section 36(1)(b) and (c) of the FOI Act as a basis for partly withholding the a number of the records at issue. At the outset, I should note that a number of the records in respect of which the HSE cited section 36(1) are records that I have either accepted are outside the scope of the FOI  request (on the basis that the redacted material does not relate to the nursing home), or found to be exempt from release under section 37(1). It is therefore unnecessary for me to examine whether section 36(1) applies to the relevant records, which are the following:

• File 4, record 1, pages 1-5 -“ minutes of a meeting dated 6 April 2020 (redacted material is out of scope)
• File 4, record 3, pages 10-13 -“ minutes of a meeting dated 8 April 2020 (redacted material is out of scope)
• File 4, record 5, pages 17-19 -“ minutes of a meeting dated 10 April 2020 (redacted material is out of scope)
• File 4, record 8, pages 29-32 -“ minutes of a meeting dated 16 April 2020 (redacted material is out of scope)
• File 5, record 6, pages 7-8 -“ email correspondence dated 20 April 2020 in relation to rosters in the nursing home ( redacted material is exempt under section 37(1) of the FOI Act)
• File 5, record 7, page 8 -“ email correspondence dated 28 April 2020 in relation to working hours in the nursing home ( redacted material is exempt under section 37(1) of the FOI Act)
• File 6, record 6, pages 40-41, 43, 45-47, 49, 51-52 and the last redaction made to page 54 -“ email correspondence dated 15 May 2020 in relation to the nursing home (redacted material is out of scope)
• File 6, record 12, pages 91 and 92 -“ email correspondence dated 6 May 2020 in relation to the redeployment of staff in the nursing home (redacted material is exempt under section 37(1) of the FOI Act)
• File 8, record 1, page 1 -“ email correspondence dated 13 April 2020 in relation to the nursing home (redacted material is out of scope)
• File 13, record 1, pages 15-17 -“ email correspondence dated 4 April 2020 in relation to a positive Covid-19 case in the nursing home (exempt under section 37(1) of the FOI Act; first redaction to page 17 is out of scope)
• File 13, record 2, pages 17 and 19-20 -“ email correspondence dated 2 April 2020 in relation to the nursing home (redacted material is out of scope)
• File 13, record 3, page 17 -“ email correspondence dated 2 April 2020 in relation to the nursing home (redacted material is exempt under section 37(1) of the FOI Act)
• File 13, record 4, page 20 -“ email correspondence dated 1 April 2020 in relation to the nursing home (first and fourth redactions are exempt under section 37(1) of the FOI Act; third and fourth redactions are out of scope)
• File 14, record 2, pages 7-8 -“ email correspondence dated 6 May 2020 in relation to rosters in the nursing home (redacted material is exempt under section 37(1) of the FOI Act)
• File 14, record 3, pages 12 and 14 -“ email correspondence dated 22 April 2020 in relation to the nursing home (exempt under section 37(1) of the FOI Act)
• File 14, record 4, pages 25 and 30 -“ email correspondence dated 22 April 2020 in relation to nursing support for the nursing home (redacted material is out of scope)
• File 14, record 9, pages 125-148 -“  email correspondence dated 25 April 2020 in relation to staffing in the nursing home (all redactions containing personal information relating to individuals, which is exempt under section 37(1) of the FOI Act, and the first and second redactions to page 141, which do not relate to the nursing home named in the FOI request and which are therefore out of scope)
• File 14, record 10, page 149 -“ email correspondence dated 23 April 2020 in relation to the nursing home (all redactions containing personal information relating to individuals, which is exempt under section 37(1) of the FOI Act)
• File 14, record 11, last redaction to page 151 -“ email correspondence dated 27 April 2020 in relation to working hours at the nursing home (last redaction  relates to personal information and is exempt under section 37(1) of the FOI Act)
• File 14, record 14, pages 182, 191, 198 and 202 -“ email correspondence dated 6 May 2020 in relation to rosters in the nursing home (redacted material is exempt under section 37(1) of the FOI Act).

The remaining records in respect of which I must examine the applicability of section 36(1) are as follows:

• File 7, record 6, pages 10-20 -“ email correspondence dated 14 April 2020 in relation to the nursing home
• File 7, record 7, page 21 -“ email correspondence dated 14 April 2020 in relation to the nursing home
• File 14, record 6, page 50 -“ email correspondence dated 23 April 2020 in relation to staffing in the nursing home
• File 14, record 9, pages 125-148 -“  email correspondence dated 25 April 2020 in relation to staffing in the nursing home (all redactions except those made to personal information relating to individuals, which is exempt under section 37(1) of the FOI Act, and the first and second redactions to page 141, which do not relate to the nursing home named in the FOI request and which are therefore out of scope)
• File 14, record 10, page 149 -“ email correspondence dated 23 April 2020 in relation to the nursing home (all redactions except those made to personal information, which is exempt under section 37(1) of the FOI Act)
• File 14, record 11, page 151 -“ email correspondence dated 27 April 2020 in relation to working hours at the nursing home (except the last redaction which relates to personal information and is exempt under section 37(1) of the FOI Act)
• File 14, record 14, pages 182, 191, 198 and 202 -“ email correspondence dated 6 May 2020 in relation to rosters in the nursing home.

Section 36(1)(b)

Section 36(1)(b) provides a mandatory exemption to the release of a record where it 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.  It should be noted that 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 subsection (1)(b) is whether disclosure of the information -œcould reasonably be expected to result in material financial loss or gain-. The test in this regard is not a question of probabilities or possibilities, but rather whether the FOI body-™s expectation is reasonable. Thus, a body citing section 36(1)(b) should demonstrate the nature of the harm envisaged and a basis for a claim that such harm could reasonably be expected to result from disclosure of the particular information in the record at issue.

The harm test in the second part of subsection (1)(b) is whether disclosure of the information -œcould prejudice the competitive position- of the person in the conduct of his or her profession or business or otherwise in his or her occupation. This is a considerably lower standard of proof than that contained in the first part of section 36(1)(b). This being said, in invoking the phrase "prejudice", the damage which could occur as a result of disclosure of the information must be specified with a reasonable degree of clarity.

I would note first of all that, in the revised schedule of records provided by the HSE, it has identified information in the records in respect of which it considered that section 36(1)(b) of the FOI applied. However, it has not specified any specific harms (in the form of material financial loss or gain, or prejudice to the competitive position, to either itself or a third party) that it expected to follow from the disclosure of the redacted material. I note also that the relevant third parties, when contacted by this Office, made no submissions in relation to the redacted material. This notwithstanding, I have examined the redacted material outlined above l and cannot envisage how any particular harms could reasonably be expected to flow from the release of the redacted information. The redacted material simply comprises the name and certain contact details of third party service providers with which the nursing home engaged in an attempt to address staffing difficulties. There records do not disclose any specific information relating to pricing, rates or invoicing which could satisfy either test in section 36(1)(b). I therefore find that the relevant material is not exempt under section 36(1)(b) of the FOI Act.

Section 36(1)(c)

Pursuant to section 36(1)(c), access to a record must be refused where the disclosure of information contained in the record could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so. Having said that, an FOI body seeking to rely on this exemption should be able to demonstrate that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure; and to explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.
As outlined above in my analysis of section 36(1)(b), the HSE did not make any submissions that specifically addressed the basis on which it expected the harms provided for in section 36(1)(c) to arise from the release of the records. In addition, no submissions were received on the matter from the relevant third party. On the basis of my analysis above of section 36(1)(b), I similarly find that section 36(1)(c) does not operate to exempt any of the material redacted pursuant to that section of the FOI Act by the HSE.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE-™s decision and find as follows:

• I accept that the records identified by the HSE as falling outside the scope of the request are indeed exempt from release on that basis, with the exception of those records identified above which I have found to be within scope.
• In relation to section 37(1), I find that the HSE was entitled under that provision of the FOI Act to withhold the information in the records that I have accepted is personal information for the purposes of section 2. However, it was not entitled to withhold the information in the records that I have found to fall outside the definition of personal information. Accordingly, I direct the release of that information, specifically File 4, record 6 (pages 20-24), File 3, record 1 (except the sixth and eighth redactions, which are exempt) and the first two redactions to File 5, record 5 (page 5).
• In relation to section 30(1)(b), I find that the HSE was not entitled to withhold the records it sought to exempt from release under that provision of the FOI Act. I direct the release of the information in those records, with the exception of personal information that I have identified above and which is exempt from release under section 37(1) of the FOI Act.
• In relation to section 36(1), I find that the HSE was not entitled to withhold the records it sought to exempt from release under that provision of the FOI Act, and I direct their release.

For the ease of reference of all parties, I have set out details of the records that are exempt from release in Appendix 2 attached to this decision.

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 requester 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.

Neill Dougan
Investigator

Appendix 1

Records in respect of which the HSE cited section 37(1) of the FOI Act

Appendix 2

Full list of records that are exempt from release