Whether the HSE was justified in refusing access to a copy of the External Governance Review report carried out in respect of Cork University Hospital

8 March 2023

Background

In a request dated 24 September 2022, the applicant sought access to a complete and final copy of an external governance report carried out on Cork University Hospital and issued in 2022. Following receipt of the request, the original decision was not issued within the timeframe allowed by the Freedom of Information Act, and the applicant sought an internal review. The internal review decision issued on 14 November 2022, and access to the report was refused under section 30(1)(b) of the FOI Act. The internal review decision states that the release of the report could be expected to result in a significant negative impact on clinical and governance structures of the Hospital. It further outlines the reports potential to negatively impact staff opinions and or cause bias towards future governance change. On 24 November 2022, the applicant applied to this Office for a review of the HSE-�s decision. She argues that the report has been undertaken at considerable cost in terms of both time and money, and that the timely release of the report is of significant public interest. The applicant also refers to a separate review carried out by the Health Information and Quality Authority (HIQA) into standards at CUH, and the stated intent therein to publish the external governance report in Q3 -� Q4 2022.

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 relevant parties who made submissions, the applicant-�s comments in her application for review and to the submissions made by the FOI body in support of its decision.  I have also examined the record at issue and had regard to its contents. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the HSE was justified in refusing access to release a copy of the report under section 30(1)(b).

Preliminary Matters                                                                        

Before I address the substantive issues arising in this case, I wish to make a few preliminary comments. Firstly, it is important to note that while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. I am therefore required to limit the level of detail that I can give in describing the withheld record. Equally, I must limit my description of the HSE-�s submissions regarding why the record is exempt. 

Analysis and Findings

Section 30: Functions and Negotiations of FOI bodies

Section 30(1)(b) of the Act provides for the refusal of a request where the FOI body 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). Where an FOI body relies on section 30(1)(b), it should identify the function relating to management concerned and it should identify the significant adverse effect on the performance of that function which is envisaged. The FOI body must then make an assessment of the degree of significance attaching to the adverse effects claimed. Establishing -�significant adverse effect-� requires stronger evidence of damage than the -�prejudice-� standard in section 30(1)(a) and other sections of the Act. Having identified the significant adverse effect envisaged, the FOI body should then explain how release of the particular information in the records could cause the harm and consider the reasonableness of its expectation that the harm will occur.

A claim for exemption under section 30(1)(b) must be made on its merits and in light of the contents of the particular record concerned and the relevant facts and circumstances of the case. The exemption is also subject to a -�public interest override-� i.e. even where the requirements of section 30(1)(b) have been met, section 30(2) provides that the exemption does not apply where the public interest would, on balance, be better served by granting access than by refusing to grant the request.

Submissions

As noted previously, having regard to section 25(3), I am constrained in the level of detail I can give when describing the record at issue or some of the HSE-�s arguments as to why it considers it exempt. The descriptions I will give are therefore at a high level but I confirm that I have had regard to the full detail provided.

In summary, the HSE argues that the release of the report is likely to impact the following management functions: Strategic Planning, Industrial Relations, Governance and Management of financial resources and management of operational matters.

The HSE argues that the release of the record could damage current and future strategic plans of the HSE and Cork University Hospital. It argues that while no individual is named, by nature of teams/management, people criticised in the report would be identifiable by other employees within the Hospital. It argues that any damage caused by a lack of trust in external review processes will result in a negative approach to any recommended changes to leadership performance, structure and processes into the future. Any lack of engagement from stakeholders or staff in future internal or external reviews as a result would have a devastating and lasting impact upon every stage of strategic planning by the hospital including scoping, determining, prioritising, executing and reviewing strategic plans.

It further claims that the review was not intended to be a full governance review, rather that it was a rapid and high-level review of clinical and corporate governance. It submits that the HSE should be able to review matters of significance to the management of the staff of its institutions without prejudicing the position of the institution, or releasing information, which could adversely affect its staff management function, or cause bias to future staff management decisions and/or future recruitment and promotions within the HSE.

The HSE also submits that the release of the report in its current form could cause disruption to the HSE-�s significant and costly efforts to improve and maintain internal operation, maintenance, and improvement of systems currently and into the future. It argues that this is reasonably expected to occur in circumstances where there is significant financial investment in ongoing and planned reforms of systems in progress but not yet implemented on a widespread basis. The HSE further states that it never intended to publish the external review, and that it was only developed for the Steering Group, SSWHG CEO commissioner of the work, and not for circulation outside this group.

The applicant has argued for the release of the record concerned on the basis that the report has been undertaken at considerable cost in terms of both time and money, and that there is a significant public interest in the release of this report. She has highlighted the principles of transparency, accountability and appropriate use of public funds as specifically relevant. She has highlighted that following a review undertaken by HIQA, it was reported that the report was to be published, and that the commitment to publication was formulated as a recommendation in relation to governance standards in a formal inspection report.

Having regard to the submissions made, and the contents of the record itself I am satisfied that its release could reasonably be expected to have a significant adverse effect on a function relation to management, specifically governance and staff management. While I consider that, there is a need for transparency, I accept that the manner in which the report was compiled, could potentially breach the confidentiality of staff contributors and cause reputational damage to identifiable members of staff, and as a result cause potentially severe disruption to staff management and a lack of faith in governance and review structures in the future. Separately, in relation to the report which was published by HIQA, I note that it was specifically assessing the Hospital-�s compliance in relation to the National Standards for Healthcare and did not assess the performance of individuals or teams. In the circumstances, I am not of the view that the two are directly comparable.

Subsection (2) of section 30 provides that subsection (1)(b) does not apply where the public interest would, on balance, be better served by granting than by refusing the request. As a general proposition, I agree that there is a public interest in public bodies operating in an open and transparent manner. I further believe that there is a public interest in the manner in which the HSE carries out its functions in respect of any issues arising, and how it investigates and remedies those issues. However, the Act requires that the public interest in releasing information which might contribute to such openness and transparency must be balanced against the harm which might be occasioned by its release. It is important to note that release under the FOI Act amounts to disclosure to "the world at large". There is also a significant public interest in ensuring that the hospital performs its role relating to management and industrial relations effectively and efficiently and without undue intrusion.

The HSE has specifically noted that the possibility that the premature release of this record could contaminate the decision making process and the work being done by the SSWHG and CUH to introduce new leadership and governance structures, particularly in circumstances where individual contributors were guaranteed confidentiality, and a right of reply was not afforded to anyone. As a result, I am satisfied that on balance, it would not be in the public interest to release the report for the reasons identified above.

On that basis, I consider section 30(1)(b) to be applicable to the record at issue.

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 withheld record identified above on the basis of section 30(1)(b) of the FOI Act.

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.

Rachael Lord
Investigator