Note: This decision was appealed to the High Court by the HSE on 31 January 2023.

Whether the HSE was justified in refusing access to records relating to Statements of Interest on the basis of sections 35(1)(b), 37(1) and 41(1) of the FOI Act

4 January 2023

Background

In a request dated 3 May 2022, the applicant sought access to records including -�copies of any Registers held centrally by the HSE that record the submission of the Statements of Interests, submitted under the Ethics Act-� for each year from 2015-2021 to -�include the names of submitters/non submitters-�. While he also sought access to Annual Compliance Statements and Statements of Interest submitted by hospital consultants, these latter aspects of the request are outside the scope of this review, as subsequently confirmed by the applicant.

In a decision dated 18 May 2022, the HSE refused the request under sections 41(1) and 35(1)(b) of the FOI Act. The applicant sought an internal review of the HSE-�s decision to refuse access to the registers sought. On 7 June 2022, the HSE affirmed its refusal of the request, following which 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 applicant-�s comments in his application for review and to the submissions made by the HSE during the course of the review. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The HSE identified seven records as falling within the scope of the request, comprising Excel spreadsheets for each year from 2015 to 2021. All seven records contain details of the names of the HSE staff members who submitted statements under the Ethics Act 1995, as amended (the Ethics Act), their grades, their work addresses, and details of the interests declared by those staff members. Some of the records contain additional information such as staff personnel numbers, staff email addresses, area of employment, line manager details, area manager details, the name of the staff member who entered details on the register, and the date of receipt of the returns. Access to all seven records was refused under sections 41(1) and 35(1)(b) of the FOI Act.

I am of the view that section 37(1) is also of relevance in this case. That section provides for the mandatory refusal of a record whose disclosure would involve the disclosure of third party personal information. A review by this Office is considered to be -�de 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 -�de novo-� nature of our reviews, I consider it appropriate to consider the applicability of section 37(1) to the information at issue, notwithstanding the fact that the provision was not initially relied upon by the HSE as a ground for refusing the request.

I also note that in his application for review to this Office, the applicant said his request related to the registers used to record the receipt or non-receipt of statements of interests submitted under the Ethics Act and that he was -�-� not seeking the statements themselves nor information contained within the statements-�. He said that -�The registers do not contain information extracted from the statements of interests - they simply record the receipt or non-receipt of statements of interests, which in of itself gives away no information contained within the statements-�. While the applicant-�s assumption is incorrect, it is a clear indicator that he is not seeking access to details of the interests actually declared by the relevant staff members. Accordingly, I have excluded all such information contained in the records at issue from the scope of this review, including the information contained in column C of the 2018 register, which comprises information relating to whether a particular review might be required in light of the interests declared.

Accordingly, this review is concerned solely with whether the HSE was justified in refusing access, under sections 35(1)(b), 37(1) and/or 41(1) of the FOI Act, to the registers in question,apart fromthe information in the registers comprising the details of the interests declared by the various staff members and column C of the 2018 register.

Analysis and Findings

In its submissions to this Office, the HSE said the Ethics Act requires it to ensure all relevant employees are informed of their statutory obligations regarding annual statements of interest. Relevant employees in the HSE are employees remunerated at or above a certain salary scale. Under section 18(2) of the Act, relevant employees are required to submit a statement of interest on an annual basis. According to the Standards in Public Office (SIPO)guidelines on compliance with the provisions of the Ethics Act, the HSE Chief Executive Officer (CEO) is the relevant authority to whom statements of interest should be furnished under section 18. Relevant employees must provide written statements of their interests, and the interests of their spouse, civil partner, child or a child of their spouse, which could materially influence the employees in the performance of their functions.

Section 41(1)(a)

Section 41(1)(a) of the FOI Act provides for the mandatory refusal of a request if the disclosure of the record sought is prohibited by law of the European Union or by an enactment which is not listed in Schedule 3 to the FOI Act. In essence, the non-disclosure provision overrides any right of access under FOI, unless that particular provision is specified in Schedule 3. This Office considers that for section 41(1)(a) to apply, a provision must exist that explicitly prohibits the release of the records, that is clear in its meaning and effect, and that can be interpreted only as prohibiting disclosure of the information in question. In this case, the HSE argued that section 35 of the Ethics Act as prohibits the disclosure of the records sought.

Section 35(1) of the Ethics Act provides as follows:

-�A person shall not disclose information obtained by him or her under this Act or the Regulation of Lobbying Act 2015 or by being present at a sitting of a Committee or Commission held in private.-�

The applicant argued that section 35(1) of the Ethics Act provides grounds for refusing copies of the statements of interest only. He said the Ethics Act does not refer to registers created to record the receipt of statements of interest. He said that the registers relate to internal HSE record management and -�have no statutory footing-�. His position is that the registers -�do not provide any information contained within the actual statements themselves-�-�. 

While the details of the declared interests contained in the records at issue do not fall within the scope of this review, I am nevertheless satisfied that the disclosure of the remaining parts would involve the disclosure of information obtained by the HSE under the Ethics Act. Among other things, it would disclose the fact that named individuals provided statements of interests. Contrary to the applicant-�s position, it seems to me that the wording of section 35(1) of the Ethics Act does not limit the prohibition on disclosure to the statements of interest submitted. Rather, the Ethics Act prohibits the disclosure of information obtained under the Act. I am satisfied, therefore, that the disclosure of the records at issue would involve the disclosure of information obtained by the HSE pursuant to the provisions of the Ethics Act that is of a type covered by section 35(1).

However, that is not the end of the matter, as subsection (2) sets out certain circumstances where section 35(1) does not apply. Subsection (2)(c)(i) provides as follows:

-�Subsection (1) does not apply to -� the disclosure of information by a person in the performance of his or her functions -�-�

In CaseOIC-120760, I found that the disclosure of records to a requester by a decision maker in an FOI body on foot of an FOI request,when the FOI Act requires same, is deemed to be the disclosure of information by a person in the performance of his or her functions for the purpose of subsection (2)(c)(i). This means that if the records sought are not exempt from release under the FOI Act, then section 35(1) of the Ethics Act cannot serve to prohibit the release of the records as subsection (2)(c)(i) serves to disapply section 35(1) in such circumstances.

Accordingly, before a finding can be made on whether section 35(1) of the Ethics Act serves to prohibit the release of the records sought in this case, it seems to me that consideration must first be given to whether a right of access to the records otherwise exists under the FOI Act. In light of the nature of the information contained in the records at issue, I consider it appropriate to examine the applicability of section 37(1) of the FOI Act to the records first.

Section 37(1)

Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. 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 also details 14 specific categories of information that is personal information without prejudice to the generality of the forgoing definition, including;

(ii)        information relating to the financial affairs of the individual,

(v)        information relating to the individual in a record falling within section 11(6)(a) (personnel records),

(ix)       a number, letter, symbol, word, mark or other thing assigned to the individual by an FOI body for the purpose of identification or any mark or other thing used for that purpose, and

(xiii)     information relating to property of the individual (including the nature of the individual's title to any property).

Certain information is excluded from the definition of personal information. Paragraph (I) provides that where the individual is or was a staff member, the definition does not include 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 those functions.

The exclusion at Paragraph (I) does not provide for the exclusion of all information relating to such directors, staff or office holders. This Office considers that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member or director of, or office/position holder in, an FOI body in the context of the particular position held or any records created by the staff member, director or office/position holder while carrying out his or her official functions. The exclusion does not deprive staff members or directors of, or office/position holders in, FOI bodies of the right to privacy generally.

It seems to me that the vast majority of the information contained in the records is captured by the exclusion to the definition of personal information in Paragraph (I). As I have outlined above, I accept that the disclosure of the names of the various staff members would involve the disclosure of the fact that the individuals concerned had submitted statements of interest. However, I note that section 18(4) of the Ethics Act provides that there shall be deemed to be included in the terms of the employment of a person in a designated position a term that the person shall comply with the requirements to furnish a statement under section 18(2). Accordingly, it seems to me that the disclosure of the fact that a staff member has submitted a statement of interests is information relating to the terms of the individual-�s employment. Moreover, much of the information at issue is, in my view, information that can reasonably be described as information relating to the positions held.

Accordingly, I find that the release of the vast majority of the information contained in the records at issue would not involve the disclosure of personal information and that section 37(1) does not apply, by virtue of the information being captured by the exclusion in Paragraph (I). I am, however, satisfied that section 37(1) applies to the personnel numbers of the various staff members, and all mobile telephone numbers recorded in the records.

Section 37(1) is subject to the other provisions of the section. Subsection (2) provides that subsection (1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that subsection (2) does not, therefore, apply. Subsection (5) provides that a request that would fall to be refused under subsection (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 subsection (5)(b) does not apply.

On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I am aware of no public interest in the release of the personnel numbers or mobile phone numbers of the relevant individuals that might outweigh their privacy rights. I find that subsection (5)(a) does not apply.

I find, therefore, that section 37(1) applies to the details of the personnel numbers of the various staff members and all mobile telephone numbers contained in the records, but to no other information contained in the records at issue. Accordingly, it is not necessary for me to consider the applicability of any other exemption to the information I have found to be exempt under section 37(1).

Section 35(1)(b)

Section 35(1)(b) provides for the mandatory refusal of a request where disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment or otherwise by law.

However, section 35(2) provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff 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.

As section 35(1) does not apply where the records fall within the terms of section 35(2), section 35(2) should be considered at the outset. In its submissions to this Office, the HSE said the ethics in public office process is undertaken annually on behalf of the Chief Executive in order to comply with its obligations as set out in the Ethics Act. It said the statements contain details of interests held by the staff members and relevant third parties -�in a personal capacity-�. It argued that the statements are not provided by the individuals in the course of the performance of their functions within the HSE. It said that in some cases the interests declared relate to third parties such as civil partners or spouses.

The records in question are excel spreadsheets created by the HSE to record submissions of interest, not the statements themselves. I am satisfied that the records were prepared by staff members of the HSE in the course of the performance of their functions. Accordingly, I must first consider whether section 35(2) serves to disapply section 35(1) in this case. The question I must consider is whether the release of the records would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by lawand is owed to a person other than an FOI body or its staff.

It is important to recall that the declared interests as contained in the records at issue are outside the scope of this review. Moreover, as I have already outlined, section 18(4) of the Ethics Act provides that there shall be deemed to be included in the terms of the employment of a person in a designated position a term that the person shall comply with the requirements to furnish a statement under section 18(2). As such, I fail to see how the release of the records could possibly constitute a breach of a duty of confidence owed to a person other than its staff. Accordingly, I find that the HSE was not justified in refusing accessing to the records in question under section 35(1)(b) of the FOI Act. 

Conclusion

In conclusion, I find that the HSE was justified in refusing access, under section 37(1) of the Act, to the personnel numbers and mobile phone numbers of the relevant individuals contained in the records. I find that it was not justified in refusing access to the remaining information that falls within the scope of this review under section 35(1)(b) or section 37(1). In turn, this means that as the remaining information is not exempt from release under the FOI Act, then section 35(1) of the Ethics Act cannot serve to prohibit the release of the records as subsection (2)(c)(i) serves to disapply section 35(1). Accordingly, I also find that the HSE was not justified in refusing access to the information under section 41(1)(a) of the Act as the disclosure of the information is not prohibited by section 35(1) of the Ethics Act in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the HSE. I find that the HSE was justified in refusing access to the personnel numbers and mobile phone numbers of the relevant individuals contained in the records under section 37(1). I find that it was not justified in refusing access, under sections 35(1)(b), 37(1) or 41(1)(a), to any of the remaining information in the records that falls within the scope of the review. I direct the release of the records,subject to the redaction of;

• the details of the interests declared by the relevant staff members in each of the registers and column C of the 2018 register on the ground that such information falls outside the scope of this review, and
• the personnel numbers and mobile phone numbers of the relevant individuals contained in the records, which I have found to be exempt under section 37(1).

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