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Annual Report 2008 - Text
Access to Investigation Reports
The first of these two cases applies the public interest balancing test which is such an integral part of FOI decision making.
In the second case, my Office could find nothing to support the public body's claim that a mutual expectation of confidence existed between the person carrying out an investigation on its behalf and the persons interviewed in the context of a work place dispute.
Mr. X and the HSE (Case 060320)
Background and Records Sought
The applicant in this case made an FOI request to the HSE for access to a copy of the report of an investigation team established by the former North-Western Health Board in 2002 as a result of an earlier complaint he had made. The complaint related to certain prescribing and dispensing practices concerning a general practitioner and a pharmacist . At the time of complaint, the general practitioner's contract was with the then North-Western Health Board and that of the pharmacist was with the then North-Eastern Health Board.
HSE's Decision
The HSE refused the FOI request on the grounds that the report was exempt from release under section 21(1)(a) & (b) of the FOI Act which deal with investigations and management functions of public bodies.
Submissions of the Parties
In his submissions to my Office, the applicant focused on the public interest factors favouring the granting of access to the record and maintained that, even the FOI Act exempted the record, this should be set aside in the public interest. He argued that the subject matter of the report was of substantial public interest in that the terms of reference required the investigators to establish whether:
- there were any breaches of legislation, including contractual code, which the then Health Board was responsible for enforcing;
- patient care was compromised
- the current arrangements in the areas involved facilitated patients' right to choose where they have their medicines dispensed.
The applicant stated that the report was "the result of serious complaints involving medical ethics, fair trading, illegal dispensing, manipulation, collusion, intimidation, fear, breach of contract, HSE staff knowingly making decisions contrary to HSE contracts." He contended that these were matters which were required to be brought into the public arena. In July 2006, the HSE made a payment to the applicant (the then complainant) which it described as "ex-gratia" "in full and final settlement" of his complaint. In this regard, the applicant took the view that any investigation which resulted in an offer of compensation of a substantial amount of public money should be made known to the public.
Having been notified of the review by my Office, the third parties concerned (the general practitioner and the pharmacist) contended that the report should be exempted by section 20(1) of the FOI Act on the grounds that it was incomplete and that a deliberative process was still underway in the matter. They said that the entire business was "a minor dispute between two pharmacists ... and is therefore of no interest or concern to the general public". Among the further arguments advanced on their behalf were that there was an agreement with the enquiry team "that the report would not emerge", that the enquiry team had demonstrated bias and that the making of negative findings in the report was done in breach of fair procedures and natural and constitutional justice. They argued that, as far as the public interest is concerned, this would be best served by "by the publication of a redacted or 'heavily warned' version of the report".
The Investigation
On the question of the third parties' contention that the report was incomplete and still subject to the deliberative process, my Office established that their contention was not well-founded. The investigation committee had presented its report to the then North-Western Health Board in 2003; there was no suggestion from the HSE that the report had yet to be completed or that any related deliberations were on-going. The arguments of the HSE were based principally on a view that the release of the report would undermine its capacity to conduct such investigations again in the future. My Office was not convinced that the release of this report would have seriously detrimental consequences for future investigations.
In the course of the investigation, my Office took the view that section 27 of the FOI Act which exempts commercially sensitive information was a relevant consideration. Given the content of the report, my Office formed the view that its release could reasonably be expected to prejudice the competitive position of one or other, or both, of the third parties in the conduct of their professions. On this basis, the exemption at section 27(1)(b) applied to the report.
The Public Interest
My Office considered that the cited exemptions at sections 21(1) - prejudice to the effectiveness of investigations and management functions - and 27(1)(b) - prejudice to a competitive position of a person in the conduct of a profession or business - as well as the deliberative process exemption at section 20, have in common that, where they are found to apply, each is capable of being set aside where the public interest so warrants. Accordingly, since an identical public interest test applies, it would not be necessary to consider the other exemptions specifically. The public interest test to be applied is the same in each case so that if any one of these exemptions is found to apply, then the report would not be releasable unless the public interest is found to support release.
We considered that the public interest considerations in favour of granting access to the report included:
- knowing how the statutory health service deals with serious complaints;
- ensuring public accountability for the actions of the HSE (including its
- predecessor health boards), its staff and its contractors;
- ensuring that the welfare of patients and clients is to the forefront of HSE actions;
- ensuring accountability in the spending of public money;
- promoting public knowledge of the systems used by the public health service and of the mechanisms for resolving difficulties.
Examination of the report showed that the persons complained of were aware of the nature of the complaints against them and were given adequate opportunity to rebut those complaints in the course of the investigation team's work. Both of the third parties attended meetings with the investigators; both had professional/legal representatives accompanying them to their respective meetings with the investigators; and both signed minutes of their meetings with the investigators. The information available therefore did not support a conclusion that fair treatment had not attended the investigation and my Office was not satisfied that the public interest arguments in favour of refusing access to the report were particularly strong. On balance, my Office concluded that the public interest was better served granting access to the report.
Review Decision
My Office annulled the decision of the HSE to refuse access to the report and directed that access, inclusive of appendices, be granted subject to the deletion of identifying details of medical card holders and patients.
Mr. X and a County Council (Case 060130)
Background and Records Sought
The record sought in this case was an Investigation Report of a complaint under the Council's grievance and disciplinary procedure. The requester was the person who had been the subject of the investigation.
Council's Decision
The Council originally refused access to the entire record, citing the section 26 - information obtained in confidence - exemption. In the course of the Review by my Office, the Council agreed to grant the applicant access to extracts from the report and added the exemption at section 21(1)(a) - prejudice to investigations - in support of its refusal of access to the remainder.
The Investigation
My Office made it clear to the Council that refusal of access to records is presumed not to have been justified unless it is shown to the satisfaction of the Commissioner that the decision was justified. It was also pointed out to the applicant that the Commissioner does not have a role in examining how the Council dealt with the disciplinary matter the subject of the report in question and that the FOI Act at section 8(4), specifically prohibits a decision maker, "Subject to the provisions of this Act...", from having regard to any reason the requester may have had for requesting FOI access to the report in question.
Consideration of this case focused mainly on the Council's claim that the information in the report at issue had been given to its investigator in confidence by the participants in the process.
Section 26 - Confidence
Section 26 the FOI Act protects information given in confidence from disclosure in certain circumstances. Section 26(1) identifies two scenarios where information may be regarded as having been given in confidence and thus, exempt from disclosure under the FOI Act. The first scenario is where the information was (i) given to the public body in confidence; ii) on the understanding that it would be treated by it as confidential; (iii) its disclosure would be likely to prejudice the giving of further similar information to that body and (iv) it is of importance to the body that such similar information should continue to be given to it. This provision does not apply where, on balance, the public interest would be better served by granting rather than by refusing to grant the request (section 26(3) refers). The second scenario is where, were the information to be disclosed, a breach of a duty of confidence provided for in an agreement or an enactment or otherwise by law would occur.
Section 26(2) sets aside the section 26(1) exemption where the record in question has been prepared by a staff member of a public body, or a person who is providing a service for a public body under a contract for services 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 a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services". The limiting of the application of section 26(1) had been set out in a number of previous decisions of my Office and was recently upheld by the High Court in The Health Service Executive -v- The Information Commissioner [2008] IEHC 298 (which I discuss in greater detail in Chapter 02 of this report).
The record at issue in this case was prepared by a consultant providing a service to the Council under a contract for services. Therefore, section 26(1) could not apply unless disclosure of the information concerned would constitute a breach of a duty of confidence which was owed to some other person (i.e. a person who was not a member of staff of the Council or a contractor/consultant to the Council).
It also seemed to my Office that there was no basis for concluding that an equitable duty of confidence existed in the circumstances. My Office did not find any evidence in the record itself to support the Council's claim that the information was given to the investigator in confidence or on the understanding that it would be treated as confidential. On the contrary, the following statement appeared a number of times in the report in relation to the contribution of various third parties to the investigation process: "It was pointed out that .... this information .... would form part of the investigation report and as such it would be made available to both parties".
Section 21- prejudice to investigations
The Council further claimed that under section 21(1)(a) of the Act, the record was exempt in that granting access to it would prejudice the effectiveness of examinations and investigations conducted by, or on behalf of, the Council. It said that disclosure would have an undermining effect on the confidential nature of the process whereby witnesses are relied upon to come forward and give evidence in relation to grievance and disciplinary cases.
Where a section 21(1)(a) exemption is relied upon to refuse access to a record, in the first instance the potential harm to the functions covered by the exemption that might arise from the granting of access must be identified. Having done this, the reasonableness of any expectation that the harm would occur must be addressed. My Office accepted that the record could fall within the section 21(1)(a) exemption, not least because it formed part of a process which the Council undertook in dealing with a particular complaint. However, the Council did not provide any information to support its assertion that future similar investigations would be harmed or that any particular harm would flow from granting the requested access to the entire record. In all the circumstances, my Office found that the section 21(1)(a) exemption did not apply to the particular record.
Review Decision
Having carried out a review under section 34(2) of the FOI Act, my Office found that the Council was not justified in its refusal of access to the record sought. It directed the Council to release the record with the exception of the personal information of individuals found to be exempt under section 28(1) of the Act.
