Whether the HSE was justified in refusing to fully grant the applicant's two requests for records concerning its decision to relocate certain day services for young adults

24/01/2019

Background

Ms X's FOI request has its background in a letter dated 11 October 2017 that she received from the HSE. The letter concerned the HSE's decision to relocate day services for young adults from a particular location, where her son attends. On 11 December 2017, Ms X sent a letter to the HSE, which contained both an application made under section 10 of the FOI Act for a statement of reasons (dealt with in my decision in Case No 180264 of 20 September 2018), and a two part request for records made under section 7 of the FOI Act (Case No 180263). Both the section 10 application and section 7 request concerned the HSE's relocation decision. On 20 December 2017, she made a further, three part request for records regarding the relocation decision (Case No 180265). 

Both requests were quite detailed and overlap to a certain extent. In summary, the applicant requested records concerning management approval of the proposed development, expenditure, site and new premises acquisition, all costs relating to the planning permission incurred to date, final anticipated expenditure, meetings and discussions between the HSE and contractors in preparation for works to commence on the new location, records created by the Chief Officer or the HSE in relation to the relocation decision, advice including any on the application of the New Directions and Transforming Lives policy and records showing that training or advice had been given to staff on policies.

The HSE did not issue a decision on the section 7 requests within the time frame specified in the Act, effectively refusing them. The applicant sought an internal review of the HSE's effective refusal on 2 February 2018. On 23 February 2018, the HSE issued what I am satisfied in the circumstances amounts to an internal review decision. It granted full or partial access to most of the records it had identified at that point as covered by the requests. It relied on sections 30(1)(c) (information disclosing an FOI body's negotiation positions or plans) and section 37 (personal information) in relation to the withheld parts of records. 

On 5 July 2018, the applicant sought a review by this Office of the HSE's decision, in which she also questioned how well the HSE had searched for records covered by her requests. During the review, the HSE said that it had identified four further files of records covered by the request. It also said that it would grant access to an attachment to record 14, which it had overlooked when issuing the internal review decision. It further said that it would grant full access to record 19, from which it had previously withheld details under section 37. It said that it would provide the applicant, outside of FOI, with some brief details regarding training. 

I have now decided to conclude my review of the HSE's decision by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the HSE, a third party and the applicant. I note that the applicant did not reply to this Office's emails of 22 and 26 November 2018. I have had regard also to the provisions of the FOI Act and to copies of the records considered by the HSE in its internal review decision. 

Scope of Review

This review is confined to whether or not the HSE has justified its refusal to grant full access to the records the subject of its internal review decision, and whether it has justified its position that it has taken all reasonable steps to look for records covered by the requests.

Delay

This Office took far longer than I would like to complete this review and I regret the delay caused to the applicant. 

When the HSE failed to provide submissions and information required and first requested on 23 August 2018, I issued a notice on 17 October 2018 to the Director General under section 45 of the FOI Act, formally requiring him to provide particular details. 

Various personnel within the HSE contacted this Office in response to the section 45 notice. On 14 November 2018, the Head of Social Care in the relevant area of the HSE provided the requested information and apologised for the failure to respond within the initial timeframe. He also made arguments on sections 30 and 37 of the FOI Act. The Director General of the HSE has also been in contact saying that he is reviewing what happened in relation to the long delay in providing information necessary to conduct this review. 

I acknowledge the number of FOI requests that the HSE processes each year and the fact that this Office deals with only a small proportion of them. By and large, the organisation promptly provides this Office with requested information or records. I am satisfied that the HSE is taking the matter seriously and this Office will work with the HSE to try to ensure that similar delays will not arise in other reviews. 

Findings

Section 15(1)(a) - adequacy of search

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of an FOI body's refusal of records under this provision assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records covered by a request or that the requested records do not exist. It is not normally the function of this Office to search for records. 

In considering section 15(1)(a) in this case, it should be noted that this Office has no remit to examine, or make findings on, whether or not the HSE should have created further records, the level of detail in records that it created or the HSE's record management practices generally. 

It is clear from its submission that the HSE did not consider all records that are covered by the requests when it issued its internal review decision. It says that that decision concerned only records held by Learning Disability Services. However, after internal HSE discussions resulting from questions in this Office's request for submissions, it became apparent that Property Management Services and Estates Management would hold records concerning the negotiation of the lease, any planning permission required, and related costs. The HSE thus identified one Property Management Services file containing paper records and another electronic Estates Management file as covered by the requests. Furthermore, after it issued its internal review decision the HSE also identified two further Learning Disability Services files containing records covered by the requests. 

By not considering the four further files on receipt of the applicant's requests, the HSE effectively refused to grant access to the records concerned. Those records have not been through the formal FOI process. It is important to note that the Commissioner is not a first instance decision maker. In the circumstances, the most appropriate decision for me to make regarding the four additional files is to annul the HSE's effective refusal of access to them, and to require it to make a fresh decision on them under the provisions of the FOI Act. The applicant is entitled to seek an internal review, and in turn, a review by this Office, if she is not satisfied with the HSE's fresh decision.

Although the HSE did not initially take all reasonable steps to locate records covered by the applicant's requests, I am still entitled to find section 15(1)(a) to apply I am satisfied that it has since carried out reasonable searches. 

The HSE's description of its searches to date 

This Office's letter to the applicant of 22 November 2018 outlined the searches that the HSE says it has now carried out. I do not intend to repeat those details in full and I will refer to them as necessary.

The HSE has identified which of the records covered by its internal review decision relate to each request and which relate to both. It has listed the areas that it says hold records relating to the decision to relocate and the actual relocation process, and the staff that it says have been asked if they hold records within the scope of the requests. It says that all electronic and paper records that were found by these staff have been forwarded to the decision maker. 

The HSE also says that all records generated or created by the Chief Officer are held electronically and in paper form in his office in Ballyshannon and were decided on by a separate decision maker on 8 February 2018. It says that the applicant did not seek an internal review of that decision. 

It says that all information about the relocation process and about the policy "New Directions and Transforming Lives" are held electronically and in paper form in the location where the applicant's son attended. It says that all records falling within the scope of the requests have now been submitted to the decision maker by staff in that location and by the Assessment and Placement Officer in Disability Services. 

Finally, it says that managers in Learning Disability Services hold records of all staff training and that records 19 and 20 as covered by the internal review decision are the only records containing such details. This Office's letter of 22 November also referred the applicant to a number of records considered in the HSE's internal review decision that relate generally to training and to the "New Directions" policy. 

I am unable to identify further specific searches that the HSE should carry out in this case, particularly in the absence of comment from the applicant. While I am disappointed that the HSE did not carry out reasonable searches for records covered by the applicant's requests when it received them, I am satisfied from its submissions that it has now taken all reasonable steps to do so. Accordingly, I find that section 15(1)(a) of the FOI Act applies. 

Withheld information - records 29, 33, 42 and 53

The HSE relied on section 30(1)(c) in relation to these details. Generally speaking, the information withheld from page (record) 53 concerns an overall total budgetary allocation for 2016. The information withheld from the other three records concerns the budget allocated to the particular relocation decision the subject of the applicant's requests. 

Disclosure of the details in records 29, 33 and 42 would affect the interests of a third party, which was invited to make submissions. The third party argues that the details concerned are exempt under section 36(1)(c) (information that if granted could prejudice the conduct or outcome of negotiations). 

Accordingly, I will consider section 30(1)(c) only in relation to the information withheld from page 53.

Section 30(1)(c)

Section 30(1)(c) of the FOI Act provides for the refusal to grant access to a record if access to the record concerned could, in the opinion of the head, reasonably be expected to 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. This exemption does not contain a harm test, but the level of harm that may result from release of the record may be relevant to the consideration of the public interest test at section 30(2). Section 30(2) provides that section 30(1) shall not apply where the public interest would, on balance, be better served by granting than by refusing to grant access to the requested record. 

In essence, the HSE says that it withheld the information because it considered it to be commercially sensitive and that its disclosure may hinder its potential to secure either this property or others. It says that third parties could use the information to "perhaps under-bid or over-bid". It also refers to a wish to maintain a competitive stance from an HSE point of view. 

As noted, the information withheld from record 53 concerns an overall total budgetary allocation for 2016. It does not give any indication of how that budget may be allocated to particular projects such as the relocation decision the subject of the FOI requests. Furthermore, the HSE has not explained how disclosure of a financial allocation for 2016 could be of use to any third parties with which it may be currently negotiating, or with whom it may reasonably expect to negotiate in the foreseeable future. Even if the information discloses a position taken by the HSE for the purposes of its negotiations concerning the relocation decision, the HSE's submission does not elaborate on the resulting level of harm. 

As the HSE is aware, section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the decision making FOI body shows to the Commissioner's satisfaction that its decision was justified. I do not consider the HSE's submission to meet the requirements of section 22(12)(b). I find that it has not justified its refusal to fully grant record 53 under section 30(1)(c). 

Section 36(1)(c) 

As already noted, the HSE's submission says that the information withheld from records 29, 33, 42 and 53 is commercially sensitive and that it wishes to maintain a competitive stance. However, it does not make any specific claim under section 36, explain whether it is seeking to protect its own interests or those of the third party, or explain why it believes the information to be so exempt. I do not consider it to have met the requirements of section 22(12)(b) in this regard. 

This third party says that the HSE decided not to proceed with the relocation decision and that the relevant information would be of use to another party with which it is currently negotiating. It says that the information is, accordingly, exempt under section 36(1)(c) of the FOI Act. Under this provision, 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 conduct and the outcome of negotiations are separate matters. 

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, the Commissioner expects that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure, and explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations. 

Further to the third party's submission and the nature of the information redacted from records 29, 33 and 42, I accept and find that it is exempt under section 36(1)(c). Subsection 36(1) is subject to other provisions of section 36 (sections 36(2) and (3)). In my view, only section 36(3) is of relevance in this case. That section provides that a request that would fall to be refused under section 36(1) may still be granted where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request. 

On the matter of where the public interest lies, I have had 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] 1 IR 729, [2011] IESC 26) (the Rotunda case). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally. 

Accordingly, I cannot take into account any private interests that the applicant may have in the release of the withheld information, or any dissatisfaction she may have with the HSE's initial relocation decision or with any of its interactions with the applicant and her son.  

There is a public interest in this case in establishing that the HSE carried out its functions in dealing with the applicant and her son in a way that was consistent with the principles of natural and constitutional justice. There is also a public interest in ensuring openness and accountability for the HSE's use of public monies. While these public interests have been served to some extent by the information already granted by the HSE, they would be further served the grant of access to the exempt information.

On the other hand, section 36 itself recognises a public in persons being able to conduct commercial transactions with FOI bodies without fear of suffering commercially as a result. In this regard, it is relevant that release of information under FOI must be seen as publication of that information to the world at large. Furthermore, the HSE confirms that the relocation did not proceed. It says that it did not pay money to the third party in relation to the property concerned. I consider that there is a strong public interest in protecting information that would impact on the third party's negotiations or competitive position in such circumstances. 

In the circumstances of this case I find that, on balance, the public interest would be better served by the refusal of access to the details withheld from records 29, 33 and 42. 

As already noted, in general terms the information withheld from record 53 concerns an overall total budgetary allocation for 2016. The third party's arguments are accordingly not relevant to this record and I find it not to be exempt under section 36. I direct the HSE to grant access to record 53 in full. 

Section 37 - personal information

The HSE refused to grant the applicant parts of records 7, 14 and 19, on the basis that the details comprised personal information and were exempt under section 37(1) of the FOI Act. However, as noted earlier, it has since granted full access to record 19.

Section 37(1) requires the refusal of access to a record containing personal information. The HSE says that the details withheld from records 7 and 14 relate to users of the day care services and their parents, guardians and relatives. Thus, I accept that the withheld details concern identifiable individuals other than the applicant and her son. I find them to comprise personal information that is exempt under section 37(1) of the FOI Act. 

Subsection (1) is subject to other provisions of section 37 (sections 37(2) and (5)). In my view, only section 37(5)(a) is of relevance in this case. That section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld. 

The public interest in establishing that the HSE carried out its functions in dealing with the applicant and her son in a way that was consistent with the principles of natural and constitutional justice has been served to some extent by the material released to date. I am not persuaded, however, that this public interest would be further served to any significant extent by the grant of access to personal information of identifiable individuals other than the applicant and her son. 

On the other hand, both 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). 

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. Even if I accepted that release of the personal information concerned would significantly further the public interest in openness and accountability regarding the HSE's dealings with the applicant and her son, I would find that this does not outweigh the public interest that the right to privacy of the third parties should be upheld.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE's refusal to fully grant the applicant's requests.

I annul the HSE's effective refusal of access to four files that it located after the internal review decision had issued. I direct the HSE to undertake a fresh decision making process on the records concerned, and to inform the applicant of the outcome in accordance with the requirements of the FOI Act. 

I find that the HSE has now taken all reasonable steps to search for records covered by the requests and that section 15(1)(a) applies. 

I find the information withheld from records 7, 14, 29, 33 and 42 to be exempt under sections 36(1)(c) and 37(1) and that the public interest weighs in favour of refusing to grant access to these details. 
I annul the HSE's refusal to fully grant record 53 under section 30(1)(c) and I direct the HSE to grant full access to this record. 
Given the lapse of time since the applicant first made her requests, I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the HSE to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) of the FOI Act. However, I am happy to note from its correspondence with this Office that the HSE appears willing to start the fresh decision making process on the additional files as soon as possible. I should make it clear that it is open to it to do so before expiry of the statutory deadline. 

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.

Elizabeth Dolan
Senior Investigator