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Mr X and the Health Service Executive (FOI Act 2014)

Case Number: 160024

Whether the refusal of access by the HSE to records relating to investigations into the ambulance service is justified under sections 30(1), 35(1) and 37(1) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 20 January 2015 the applicant made an FOI request to the HSE for "all information in the possession of the HSE into any inquiry or investigation, etc, internal or external into the ambulance service in County Louth since January 2012. I do not seek any personal information whatsoever".

By letter dated 22 January 2015, the HSE contacted the applicant to say that his request did not contain sufficient particulars and offered to assist the applicant to refine his FOI request. The applicant did not refine his FOI request. Having received no original decision, the applicant requested an internal review of the deemed refusal by email dated 26 February 2015. Having received no internal review decision, the applicant contacted this Office on 25 March 2015.

Following contact between this Office and the HSE, the HSE communicated its position to the applicant by letter dated 20 April 2015. It said that it had decided to grant access to the records on a deferred basis (with any personal or sensitive information removed) when the relevant investigations and related appeals had concluded, under section 16(1)(b) of the FOI Act. It also referred to sections 29 (deliberative process), 30 (functions and negotiations), 35 (confidentiality) and 37 (personal information) of the FOI Act.

On 13 January 2016, the applicant applied to this Office for a review of the HSE's decision, noting that the HSE had not yet released any records to him. This Office accepted his application for review, under section 22(4)(b) of the FOI Act by extending the period for the making of an application for review.

In conducting this review I have had regard to the HSE's decision on the matter; the HSE's communications with the applicant and with this Office; the applicant's communications with the HSE and with this Office; the submissions of the HSE; the content of the withheld records, provided to this Office by the HSE for the purposes of this review and to the provisions of the FOI Act.

Scope of the Review

By way of background, the HSE explained that the request covers two ongoing investigations which also involve a disciplinary process and legal proceedings.

The applicant's original request said that he does not seek personal information. He advised this Office by telephone: "I do not want anybody's name". On reviewing the records, I consider that the majority of them comprise personal information within the meaning of the FOI Act in that they identify individuals. Therefore, they arguably fall outside the scope of the applicant's FOI request. However, the definition of personal information is much broader than people's names. As it is not clear to me that the applicant intended to exclude information other than people's names from his FOI request, I will consider the records under section 37 of the FOI Act.

I should mention that the HSE provided this Office with a record which it subsequently claimed fell outside the scope of the applicant's FOI request (Investigation B: Book 3, tab 28). I have reviewed this record and note that the HSE does not claim that a related record (Investigation B: Book 3, tab 27) falls outside the scope of the applicant's FOI request. I do not believe that the record at Investigation B: Book 3, tab 28 falls outside the scope of this review and will consider it under section 37 below, on the basis that it appears to be "information in the possession of the HSE into any inquiry...into the ambulance service...".

Having regard to the above, and to the HSE's submissions to this Office, the question for this review is whether the HSE is justified in refusing access to the records under sections 30(1), 35(1) and 37(1) of the FOI Act. The records at issue are those scheduled by the HSE in its submissions to this Office as follows: (Investigation A) Files 1-40 and (Investigation B) Files 1-8, Books 1-3, and a separate unnumbered folder.

Handling of the request and review by the HSE

I must comment on certain shortcomings in how the HSE dealt with this FOI request and review.
First, although the HSE initially contacted the applicant about refining his FOI request, it did not subsequently take the required decisions within the relevant statutory time-frames. It was only when this Office contacted the HSE that it communicated its position to the applicant.
Secondly, when this Office contacted the HSE on foot of this application for review, the HSE revised the basis on which it withheld access to the records. It said that the decision-maker had erred in the application of section 16(1)(b) and apologised for misleading the applicant. It provided this Office with a schedule which outlined the provisions on which it now relies, i.e. sections 30(1)(a), (b), (c), 35(1) and 37(1). The HSE accepts that its original decision gave the applicant an expectation that the records would be made available in due course. I agree with this interpretation, and note that proper decision-making and clear communication at an earlier point in time would probably have avoided the need for this application for review.
Thirdly, the HSE did not provide the applicant with a schedule of records. While the FOI Act does not require a schedule of records, it is clearly best practice to provide the requester with a list of the records held. I refer the HSE to the Central Policy Unit's manual on dealing with FOI requests. It is clear from that manual that the schedule of records is intended to be an essential reference point, both for the person seeking access and for this Office if the matter goes to review.

Preliminary Matters
Before considering the exemptions claimed, I wish to make the following points.

First, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the HSE to satisfy me that its decision is justified.

Secondly, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Thirdly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. I take the view that neither the definition of a record under section 2 nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent.

Finally, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. The extent to which I can describe the records at issue is particularly limited in this case.

Analysis and Findings

Section 15(1)(d) - Information in the public domain

The HSE says that certain records do not fall within FOI as they are publicly available. Section 15(1)(d) of the FOI Act provides that FOI bodies may refuse to grant a request where the information is already in the public domain. The following records are available on the HSE's website: Investigation B: Book 1 tab 8, tab 14, tab 15, tab 16, tab 17. I therefore find that the HSE is justified in withholding access to these records under section 15(1)(d) of the FOI Act. However, in making this finding, I would ask the HSE to provide the applicant with a proper schedule describing the records if it has not already done so, to ensure that the applicant is aware of what information is in the public domain.

Section 37(1) - Personal Information

Section 37(1)

The HSE claims this exemption for all the remaining records, which I will refer to as "the records".

Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include: "(i) information relating to the educational, medical, psychiatric or psychological history of the individual", "(iii) information relating to the employment or employment history of the individual" and "(v) information relating to the individual in a record falling within section 11(6)(a)". Section 11(6)(a) of the FOI Act refers to personnel records of members of staff of FOI bodies.

The records relate to two separate investigations into the actions of members of staff of the National Ambulance Service, in connection with two separate incidents. They contain information which relates not only to the relevant staff members' employment and their conduct in the incidents concerned, but also to the patients involved in the incidents (and their family members), including medical histories.

Paragraph I of section 2 of the FOI Act excludes certain matters from the definition of "personal information", including the names of staff members of an FOI body and information relating to their office. However, as this Office observed in Case 090045 (Mr X and University College Cork), this exclusion "is intended, in essence, to ensure that section 28 [now section 37] will not be used to exempt the identity of a public servant while carrying out his or her official functions. The exclusions to the definition of personal information do not deprive public servants of the right to privacy generally". As I note above, the personnel records of staff members of FOI bodies are included within the definition of personal information. The records at issue suggest the likelihood of complaints having been made, of investigative processes and possible action within the terms of disciplinary procedures. I do not accept that any alleged mis-conduct could be characterised as being for the purpose of the performance of the employee's functions. Accordingly, the qualification on the definition of "personal information" cited above does not apply to the type of information sought by the applicant. I am satisfied that none of the information at issue falls into any of the categories of information in paragraph I of section 2 of the FOI Act and that it is covered by the definition of personal information under the FOI Act.

Furthermore, I accept the HSE's submission that the record for Investigation B: Book 3, tab 28 was given to the HSE on the understanding that it would be treated as confidential. I am satisfied that this information is covered by the definition of personal information in section 2 of the FOI Act.

As noted above, the records also contain information about the patients involved in the incidents. This information relates to their medical histories and is therefore of a highly sensitive nature. I am satisfied that it is covered by the definition of personal information under the FOI Act.

In theory, one could extract certain words or phrases from the records which do not relate to the individuals concerned. However, with the exception of certain records listed below, those words and phrases appear in the context of information which relates to the investigations of the individuals' employment and conduct in the incidents concerned, or to the patients and their medical histories. Having regard to section 18 of the FOI Act, I conclude that to provide the records with isolated words and phrases would be to provide misleading records. Equally, I am satisfied that the redaction of names would not be sufficient to protect the identity of the individuals involved, given the circumstances of the incidents at issue.

I therefore find that, with the exception of certain records listed below, the records are exempt from release under section 37(1) of the FOI Act. This is subject to the provisions of sections 37(2) and 37(5), which I examine below.

This finding does not apply to the following records, which I consider below under section 30 of the FOI Act: Investigation A - "Methodology" at pages 7, 8 and the first paragraph of page 9 of Files 4, 14, 16, 22, 25 and 27 (from "Principles governing the investigation process" to "Ends"); Investigation B - "Methodology" and "Steps in conducting the investigation" at tabs 1 and 2 of Book 1.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply to the records which I have found to be exempt under sections 37(1). That is to say, (a) the information contained in the remaining records does not relate solely to the applicant; (b) the individuals to whom the information relates have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

I am then required to consider section 37(5) as it applies to the records.

Section 37(5) - The Public Interest

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where:

(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.

The July 2011 Supreme Court judgment in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] 1 I.R. 729, [2011] IESC 26 ("the Rotunda case") outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Therefore in considering section 37(5)(a), I must distinguish private interests from "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. "

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will 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.

In my view, the information which the records contain is inherently private, in that it is presented in such a way as to be inextricably linked to complaints made arising from individuals' employment and/or the medical histories of individuals. I cannot identify a public interest which would override the Constitutional rights to privacy of the staff members under investigation, or of the patients (and family members) to whom the records relate. I therefore find that section 37(5)(a) does not apply in the circumstances.

It has not been argued that releasing the remaining records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances.

Section 30 - Functions and negotiations

The remaining records which fall to be considered are: Investigation A - "Methodology" at pages 7, 8 and the first paragraph of page 9 of Files 4, 14, 16, 22, 25 and 27 (from "Principles governing the investigation process" to "Ends"); Investigation B - "Methodology" and "Steps in conducting the investigation" at tabs 1 and 2 of Book 1. The same information is duplicated in these various copies of records within the files. Those parts of the records listed above do not contain identifying information of individuals involved in the investigations. The HSE invokes section 30(1)(a), (b) and (c) in respect of these records.

Section 30(1) of the FOI Act provides:

"A head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to -

(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof,

(b) 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), or

(c) 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".

Section 30(1)(a)

When a public body relies on section 30(1)(a), it should first identify the potential harm to the relevant function specified in paragraph (a) which might arise from disclosure and secondly consider the reasonableness of the expectation that the harm will occur. The FOI body must show that there are adequate grounds for its expectation. It should identify the potential harm or prejudice to the relevant test, examination etc and show how releasing the record could reasonably be expected to prejudice the effectiveness of tests or examinations etc. It should then go on to consider the public interest test under section 30(2). In the Supreme Court judgment in Sheedy v Information Commissioner[2005] IESC 35, Mr. Justice Kearns stated in relation to section 21(1) - the equivalent of section 30(1) prior to the 2014 Act - that "the onus to produce evidence of prejudice fell on the Department and in the absence of same the Commissioner was entitled, under s. 34 of the Act of 1997, to hold against the Department. A mere assertion of an expectation [of prejudice] ... could never constitute sufficient evidence in this regard...".

The HSE submits that releasing the methodologies and terms of reference could interfere in the current investigations and future investigations. It says that it is important that the HSE can investigate matters in a climate of confidentiality and without undue interference or prevarication to the detriment of the process.

I accept that the HSE's investigative process is a function for the purposes of section 30(1)(a), in that it involves the investigation into a complaint about the National Ambulance Service. However, the HSE has merely asserted a potential harm. It has not demonstrated exactly how releasing these particular records could adversely affect the National Ambulance Service in its investigation. The methodologies for the two respective investigations appear to be generic HSE investigation methodologies. It is not apparent to me from the content of the records or from the HSE's submissions how releasing this information could harm either of the HSE's investigations and the HSE has not demonstrated to me that this is a reasonable expectation. I therefore find that the HSE is not justified in withholding access to the records under section 30(1)(a).

Section 30(1)(b)

When a public body relies on section 30(1)(b), it should first identify the potential harm to the performance of its any of its functions relating to management and secondly consider the reasonableness of the expectation that the harm will occur. In identifying the harm, it should identify the significant adverse effect on its management functions. To satisfy the Commissioner, the public body must show that there are adequate grounds for its expectation. Establishing "significant, adverse effect" requires stronger evidence of damage than the "prejudice" standard of section 30(1)(a). Not only must the harm be reasonably expected, but it must also be expected that the harm will be of a more significant nature than that required under section 30(1)(a).

The HSE submits that releasing these records would result in difficulties in communications and management of staff, particularly in relation to the relevant investigations, due to the challenges which have presented during the processes. It says that releasing the records will compromise the HSE's ability to consult with union representatives, which would result in staff and unions being compromised in coming to investigations in an open and transparent manner. It submits that this will have a significant adverse effect on the investigative functions of the HSE. I accept that the HSE's management of its staff is a management function for the purposes of section 30(1)(b). However, the HSE has merely asserted potential harms. It has not demonstrated exactly how releasing these particular records could reasonably be expected to have a "significant, adverse effect" on that function. Neither is it apparent to me on the face of these records how this could be the case. I therefore find that the HSE is not justified in withholding access to the records on this basis under section 30(1)(b).

Section 30(1)(c)

Section 30(1)(c) is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of an FOI body. It does not contain a harm test. However, FOI bodies should identify the relevant negotiations at issue and show that releasing the records could reasonably be expected to disclose positions taken for the purpose of those negotiations.

In its submissions, the HSE refers to its investigative processes and to its ability to consult with union representatives and communications between staff and unions. However, it does not identify any relevant negotiations at issue. Nor does it point to any negotiating positions which these records disclose and it is not apparent to me how these methodologies could disclose any such positions. Accordingly, I find that the HSE has not justified its refusal of access to the records under section 30(1)(c) of the FOI Act.

Section 30(2)

As I find that section 30(1)(a), (b) and (c) do not apply, I am not required to go on to consider the public interest balancing test under section 30(2) of the FOI Act.

Section 35(1) - Confidentiality

As I have found the records in respect of which the HSE claims this exemption to be exempt under section 37, it is not necessary for me to consider section 35(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE's decision. I find that the withholding of the following records is justified under section 15(1)(d): Investigation B: Book 1 tab 8, tab 14, tab 15, tab 16, tab 17. I affirm its decision to withhold the remaining records under section 37(1) with the exception of the following records: Investigation A - "Methodology" at pages 7, 8 and the first paragraph of page 9 of Files 4, 14, 16, 22, 25 and 27 (from "Principles governing the investigation process" to "Ends"); Investigation B - "Methodology" and "Steps in conducting the investigation" at tabs 1 and 2 of Book 1. I annul its decision to withhold these records and I direct their release.

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.

Elizabeth Dolan
Senior Investigator