Decision
Company X and Health Products Regulatory Authority
From Office of the Information Commissioner (OIC)
Case number: OIC-140400-C2F7W6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-140400-C2F7W6
Published on
Whether the HPRA was entitled to refuse access to records relating to its engagement with the Health & Safety Authority (HSA) regarding label instructions, safety warnings and summary of product characteristic for a product manufactured by the applicant company
3 September 2024
The applicant company manufactures a certain product (“the product”). In a request dated 12 April 2023, the applicant sought access via its solicitors to records created on or after a specified date relating to the HPRA's engagement with the HSA regarding the label instructions, safety warnings and summary of the product. The context for the request is an incident involving the product (“the incident”) which led to criminal charges being brought against the applicant.
In a decision dated 11 May 2023, the HPRA identified 24 records that fell within the scope of the request, releasing three records in full and two in part, and withholding the remainder. The HPRA relied on sections 30(1)(a), 31(1)(a) and (b), 32(1)(a)(iv), 35(1)(a) and 36(1)(a) and (b) of the FOI Act in its decision. On 6 June 2023, the applicant sought an internal review of the HPRA’s decision. In its internal review decision dated 27 June 2023, the HPRA varied its original decision by releasing a further three records in full and six in part. It also found that certain records, or parts of records, fell outside the scope of the FOI request. The HPRA affirmed its original decision in respect of the remainder of the records. On 11 July 2023, the applicant sought a review by this Office of the HPRA’s decision.
In the course of conducting this review, I formed the view that the release of certain of the records at issue potentially affected the interests of the HSA. I therefore wrote to the HSA to advise it of the potential release of these records and to invite it to make any submissions that it wished in relation to the matter. The HSA subsequently made submissions which I have considered fully. I also felt it necessary to contact the Office of the Director of Public Prosecutions (DPP) to afford it the opportunity to make submissions on the potential release of the records, given that a criminal trial that it is prosecuting is ongoing. The DPP reverted to indicate that it did not consider it necessary to make any submissions.
Furthermore, in the course of this review the HPRA indicated that it had come to its attention that a similar or identical FOI request had been made by the applicant to the HSA (“the HSA request”) and that, on foot of same, the latter body had released certain records that are identical to records at issue in this review. I contacted the applicant’s solicitor to confirm that it had received the relevant records in response to the HSA request, and it confirmed that this was the case, although it noted that certain of the records had been released with redactions that it did not consider were justified. I have had sight of copies of the records the HSA released to the applicant. Moreover, it also came to my attention that certain records that fall within the scope of this review had been released to the applicant via the Discovery process in the context of the ongoing criminal proceedings. On the basis that certain records at issue in this review have already been released wholly or in part to the applicant, either on foot of the HSA request or via Discovery, I formed the view that these records, or parts of the records, could be excluded from the scope of this review. I address in more detail below the matter of the excluded records.
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 correspondence between the parties, and the applicant’s comments in its request to this Office for a review of the HPRA’s decision, and the submissions made by the HPRA and the HSA. I have also examined the contents of the records. I have decided to conclude this review by way of a formal, binding decision.
Before I consider the substantive issue, I wish to make a number of preliminary comments. First, section 25(3) of the FOI Act requires the Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. Therefore, the extent to which I can discuss certain information contained in the records is limited.
Secondly, section 22(12)(b) of the FOI Act provides that when a decision to refuse a request is reviewed, 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, the onus is on the HPRA to justify its refusal to release the records at issue.
I also wish to note that, although the HPRA cited section 36(1)(a) (relating to the protection of trade secrets) in its decision and accompanying schedule of records, its subsequent submissions it did not address section 36(1)(a) at all. On an examination of the records in respect of which the HPRA purported to rely on section 36(1)(a), I cannot see that they concern trade secrets in any way. I am satisfied, therefore, that I am not required to consider section 36(1)(a) in this review.
Furthermore, I note that in the schedule of records provided by the HPRA it identified three separate categories of records, as follows:
1. Letter/emails between the HSA and HPRA
2. Meeting minutes (this category also contains records comprising meeting agendas)
3. Internal communications
For the ease of reference of all parties, in the course of this review I will refer to the records at issue by category number and record number (for example “category 1, record 1”, “category 2, record 4”, and so on).
Finally, I note that in the schedule of records, certain attachments to email records have been scheduled as records in their own right (for example, the email comprising category 3, record 9 contains two attachments which have been scheduled as records 9.1 and 9.2). In the case of other email records, attachments have been described, but not given their own record number on the schedule. For the purposes of this review, where an attachment to an email has been given its own record number, I will refer to it by that record number. Otherwise, I will identify the attachment by reference to its description.
This review is solely concerned with (i) whether the HPRA was entitled, under sections 29(1), 30(1)(a), 31(1)(a) and (b), 32(1)(a)(iv), 35(1)(a) and 36(1)(b) of the FOI Act, to refuse access wholly or in part to certain of the records, and (ii) whether it was justified in finding that certain records fall outside the scope of the applicant’s FOI request.
As outlined above, certain records that fall within the scope of this review have already been released to the applicant via the Discovery process. These records can be excluded from the scope of this review. I make this finding on the basis of the judgment of O'Neill J. in the High Court case of EH and EPH v. the Information Commissioner (96 MCA/1999 & 107 MCA/1999), as referenced by the then-Commissioner in her decision in case number 050166. Although that case, and the EH High Court case, pre-date the 2014 FOI Act, I consider that both are still relevant to this review. The principles enunciated in the EH judgment provide that release of records under the FOI to the defendant (as is the case here, where the applicant is the defendant in forthcoming criminal proceedings), where those records had already been released via Discovery, would result in a contempt of court arising. This is because release under FOI, which places no restrictions on the future use of records disclosed, would constitute a breach of a defendant's implied undertaking to the prosecution and the Court not to disclose the documents or information contained therein to any third party. Accordingly, it is appropriate to exclude the following records, which the applicant has received via Discovery, from the scope of this review.
• category 1, record 1 (letter dated 5 July 2018 from HSA to HPRA)
• category 1, record 2 (letter from HSA to HPRA dated 17 December 2018)
• category 1, record 3 (letter to HSA from HPRA dated 18 February 2019)
• category 1, record 4 (email correspondence dated 30 April 2020 and 14 January 2021, including an internal email dated 18 February 2021 with attachment entitled “Final Minutes HSA HPRA meeting 26 August 2019”).
In addition, I note that the attachment to category 1, record 4 is identical to category 2, record 2. As category 2, record 2 has been released to the applicant’s solicitor via Discovery, in the form of the attachment to the email comprising 18 February 2021 which forms part of category 1, record 4, it is appropriate to also exclude it from the scope of this review.
Certain additional records, that are identical to records that fall within the scope of this review were also released in response to the HSA request. These are as follows:
• category 2, record 1 (agenda of HPRA/HSA meeting dated 29 January 2020)
• category 2, record 3 (minutes of HPRA/HSA meeting dated 26 August 2019 with tracked changes).
Category 2, record 1 was released by the HPRA in full, and category 2, record 3 in part, and accordingly I consider necessary to examine only those parts of the latter record that remain unreleased to the applicant (ie. the parts of category 2, record 3 that were redacted by the HSA in response to the HSA request).
I should also note that, in response to the HSA request, that body part-released a draft minute of an HPRA/HSA meeting dated 29 January 2020. Category 2, record 4 of the records at issue in this review is a minute of the same meeting. However, a comparison between the records at issue in this review and the ones released by the HSA shows that the record released by the HSA appears to be a different version of the draft minutes. As the minutes released by the HSA are not the same as those which comprise category 2, record 4 which forms part of this review, I will examine the latter record for release in full.
As outlined above, in its decision on the applicant’s FOI request the HPRA deemed certain records, or parts of records, to be outside the scope of the request. In a footnote to the schedule of records, the HPRA said this was because the relevant information in the records “…does not relate to the…label instructions, safety warnings and summary of product characteristic for [the product]”. The information deemed out of scope by the HPRA is as follows:
• category 3, record 3.1 (attachment to email of 13 July 2020 that forms part of category 3, record 3 entitled “HSA draft response”) – all redacted material (except point 4 in the attachment, which was withheld under section 36(1) of the FOI Act)
• category 3, record 5.1 (attachment to category 3, record 5) – information redacted from page 1 of attachment
• category 3, record 5.2 (attachment to category 3, record 5 “Internal meeting Re: [the applicant]_draft agenda”) – all information redacted from record
• category 3, record 6 – internal HPRA email dated 25 August 2019 – final paragraph of email
• category 3, record 6.1 (attachment to category 3, record 6): substantial parts of the records at paragraphs 3, 5, 6, 8, 9 and 11
• category 3, record 7 – information redacted from pages 1 and 2
• category 3, record 9 – all redactions made to record (apart from the first redacted section of page 1, which was withheld under section 29(1) of the FOI Act)
• category 3, record 9 – all redactions to the record apart from the first redaction made to the email dated 5 October 2020, which was made pursuant to sections 29(1) and 30(1)(a) of the FOI Act)
• category 3, record 9.1 (attachment to category 3, record 9) – entire record.
In submissions accompanying the applicant’s appeal to this office, its solicitor did not argue that any of the relevant records (or parts of records) should be considered within the scope of the FOI request. This notwithstanding, I consider it appropriate to examine the relevant records (or parts thereof) to establish whether they are, indeed, outside the scope of the request.
Based on their contents, I accept with one exception the HPRA’s arguments that the relevant records or parts of records are outside the scope of this review. The exception relates to the redactions made to category 3, record 7, which comprises internal HPRA emails dated 28 May 2020, 4 June 2020, 9 July 2020, 10 July 2020 and 13 July 2020. Some of the redacted parts of this record seem, to me, to relate to the HPRA’s engagement with the HSA regarding the label instructions of the product (and in particular to proposed changes to the Instructions For Use (IFU) of the product), so as to bring that material within scope. In particular, in my view the following parts of category 3, record 7 contain material relating to the HPRA’s engagement with the HSA regarding proposed changes to the label instructions:
• email of 10 July 2020, sent at 18:08 – the text at point 3 of the email
• email of 9 July 2020 sent at 16:31– text at point 4 of the email.
In relation to the material in category 3, record 7 that I have found to be within the scope of this request, I contacted the HPRA to invite it to make any additional submissions that it wished. The HPRA reverted noting that, while it accepted that both pieces of text could be considered within scope, it also took the view that the provisions of the FOI Act under which it had withheld the other records at issue applied to exempt it from release. I also invited submissions from the applicant’s solicitor on the material deemed by the HPRA to be outside scope. No further submissions were received from the applicant’s solicitor on this point. I examine below the extent to which the in-scope portions of category 3, record 7 might be exempt from release.
I also note that, in relation to the exemption relied upon by the HPRA under section 36(1) of the FOI Act (which relates to the protection of commercially sensitive information), much of the information that the HPRA argued was commercially sensitive appears to relate almost entirely (with a small number of exceptions) to parties other than the applicant. Furthermore, the information does not seem to me to relate to the HPRA's engagement with the HSA regarding the label instructions, safety warnings and summary of the product specifically manufactured by the applicant, as sought in the FOI request. For example, the redactions at point 1 of category 3, record 3 relate to Market Authorisation Holders (MAHs) and are concerned in the main with parties other than the applicant. In these circumstances, I consider that the following material, in respect of which the HPRA cited section 36(1), falls outside the scope of this review and thus does not fall to be considered for release:
• the redactions at point 1 of the email of 4 June 2020 made to category 3, record 3
• the first redaction made at point 4 of category 3, record 3.1
• the first redaction made at page 2, and the two redactions made at page 3, of category 3, record 7
• the final sentence of paragraph 4 at page 2 of category 3, record 5.1, beginning “It is also following up…”.
Indeed, I consider that, given the specific wording of the FOI request (which was quite clear in seeking access to information comprising the relevant discussions between the HPRA and HSA as they pertained to the product as manufactured by the applicant company), any reference in the records to third party companies who manufacture similar products is not within the scope of the request (even where the HPRA has not sought to rely on section 36(1) in relation to those references). I therefore also find that the following material in the records is outside the scope of this review:
• category 1, record 5 – the reference to two third parties in the first paragraph at point 3 in the attachment to the record (sentence beginning “The HSA investigation involved inspection of the…”). I make the same finding in relation to category 2, record 3, which is identical to the attachment to category 1, record 5
• category 1, record 7 – five references to a third party on page 1 of, and five references to the same third party on page 2 of the same record
• category 2, record 4 – three references to a third party under the heading “2. Review of action points” at page 1, and 10 references to the same third party at page 2 and one on page 3. In addition, a reference to a second third party at point 2 on page 3, and another reference to the second third party as well as to a further third party under the heading “Post meeting note” at page 4. Moreover, a further reference to the first-named third party at page 4 of the record (sentence beginning “HSA emphasised that the IFU issued by…”). Furthermore, two additional references to the first-named third party at page 5 of the record at points 1 and 2, and a fourth third party at point 2 of page 5, under the heading “Actions”.
There is a small amount of remaining material in the records which does not relate to third parties, and as such is within scope, which the HPRA also withheld under section 36(1)(b). I examine below the extent to which it was justified in doing so.
As a consequence of the exclusion of the above records, in whole or part, the following are the records that fall to be examined in this review:
• category 1, record 5 (email correspondence between the HPRA and HSA dated 1 October 2019 and 30 January 2020, including an internal HPRA email dated 30 January 2020 with attachment entitled “HSA HPRA meeting 26.08.2019 Minutes HPRA Comments”)
• category 1, record 6 (email correspondence between the HPRA and HSA dated 2 July 2019, including thread of internal HPRA emails dated 3 and 4 July 2019 with attachment entitled “HSA Safety Alert”)
• category 1, record 7 (HPRA update to the HSA dated 1st October 2020)
• the parts of category 2, record 3 (described above) not released on foot of the HSA request (this record is identical to the attachment to category 1, record 5)
• category 2, record 4 (draft minutes of the HSA/HPRA meeting of 29 January 2020)
• category 3, record 3 (internal HPRA emails dated 28 May 2020, 4 June 2020 and 13 July 2020)
• category 3, record 4 (internal HPRA email dated 15 January 2019 with two attachments entitled (i) “HSA request for information to support their investigation of [the incident]”, and (ii) “Letter from the HSA to the HPRA dated 17 December 2018”)
• category 3, record 5.1 (attachment to category 3, record 5 entitled “[the incident]_follow up”)
• category 3, record 6.1 (attachment to category 3, record 6 entitled “Briefing note for HSA meeting 26 August 2019”)
• the parts of category 3, record 7 (described above) that I have found to be within scope
• attachment to category 3, record 8 (“Draft minute of HSA-HPRA meeting 29 January 2020” – this record is identical to category 2, record 4)
• the within-scope parts of category 3, record 9 (internal HPRA emails dated 25 September 2020, 30 September 2020, 2 October 2020, 5 October 2020)
• category 3, record 9.2 (attachment to the email of 5 October 2020 that forms part of category 3, record 9 entitled “051020_Commson[sic] rish[sic] with[the product]”)
• the email dated 15 January 2019 at page 2 of category 3, record 10 (I note that this is identical to the email comprising category 3, record 4)
Section 32
Section 32(1)(a)(iv)
The HPRA relied on section 32(1)(a)(iv) to withhold access in full to category 1, records 5, 6 and 7, and category 2, record 4 (which is identical to the attachment to category 3, record 8), and in part to the within-scope portions of category 3, record 5.1 (attachment to category 3, record 5), and category 3, record 6.1 (attachment to category 3, record 6). It also withheld access to category 2, record 3 under section 32(1)(a)(iv), albeit that this record was released in part on foot of the HSA request. I will also consider the potential applicability of section 29(1) to the parts of category 3, record 7 that I have found to be in scope.
Section 32(1)(a)(iv) provides that an FOI body may refuse to grant an FOI request if access to the record concerned could, in its opinion, reasonably be expected to prejudice or impair the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal. In examining any claim for exemption under section 32(1)(a)(iv), this Office considers that the words "prejudice" and "impair" were not intended to be synonymous and so, taking their ordinary literal meaning, an FOI body relying on the exemption should consider whether the matter specified could reasonably be expected to be prejudiced (that is to say, injured or potentially injured) or impaired (that is to say, damaged or weakened). In addition, the relevant test in considering this exemption is not one of probabilities or possibilities, but rather whether or not the decision maker's expectation is reasonable. An FOI body should identify the potential harm to the functions covered by the exemption that might arise from disclosure, and consider the reasonableness of any expectation that the harm will occur. The FOI body should also demonstrate how release of the records could reasonably be expected to result in that harm. The FOI body should specify what it is about the records or the information in therein which, if released, is expected to cause the harm envisaged and it should explain how or why that harm is expected to occur.
It is not in dispute that the relevant proceedings comprise the forthcoming criminal trial involving the applicant. In submissions on the applicant’s behalf, its solicitor stated that no case had been made for the argument that the release of the records could prejudice or impair the conduct of these proceedings. It stated that it could not see how the fairness of the proceedings could in any way be impaired or prejudiced by disclosure of the records, and argued that, if anything, the refusal of access to the records amounted to a greater risk of constituting unfairness to the applicant, particularly where, following the HPRA’s engagement with the HSA, it was directing instructional changes to the applicant. The applicant’s solicitor cited the Supreme Court decision in the case of McKevitt v DPP [2008] IESC 51, to the effect that in a criminal case the prosecution is under a duty to disclose to the defence any material which may be relevant to the case, which could either help the defence or damage the prosecution, and that if there is such material which is in their possession they are under a constitutional duty to make that available to the defence. The applicant’s solicitor therefore argued that an obligation arose to provide the relevant information in the records to the applicant. The applicant’s solicitor stated furthermore that, while the HPRA’s argument for refusal of access to the records under section 32(1)(a)(iv) was largely based on ideas of fairness, its concerns in this regard appeared to be heavily weighted, without adequate justification, towards an interpretation of ‘fairness’ in favour of itself and the HSA, with the implication that disclosure of these records might somehow undermine the prosecution. The applicant’s solicitor argued that the mere fact that disclosure might potentially weaken the prosecution of this case did not render such disclosure unfair. In addition, the applicant’s solicitor argued that, even allowing for the fact that release of records under FOI amounts to a disclosure to the world at large, and notwithstanding the fact that the applicant had no intention of further disseminating the records, the HPRA had not explained what the unfairness was to which disclosure could potentially give rise.
In its submissions, the HPRA argued that section 32(1)(a)(iv) applied on the basis that the FOI Act had not been intended to facilitate the disclosure of evidence in the context of criminal trials. It stated that, in the present case, a date had been set for a criminal trial before a jury in the Circuit Court, arising from matters that were addressed in the records. The HPRA argued that release of the relevant information under FOI could give rise to the possibility that jury members could become aware of the content of the records. The HPRA went on to point out that it was not the party bringing the relevant criminal proceedings, and as such was unfamiliar with the specifics of the proceedings. Accordingly, based on the information available to it, it stated that it was guided by the overarching principle that the release may prejudice the criminal trial, therefore harming the proper administration of justice, and accordingly that access to the records must be refused. The HPRA also argued that, in circumstances where it was not the prosecuting party, the applicant’s solicitor’s reference to the principle in the Supreme Court judgment in McKevitt v DPP was not applicable to it. According to the HPRA, the release the records via FOI, in the absence of legal argument before the court, would usurp the jurisdiction of the courts, which would be a fundamental harm to the administration of justice.
In submissions made by the HSA, it stated that, while it had initially considered section 32 to apply to the records at issue, it had reconsidered its position. In particular, the HSA stated that, in circumstances where there was only one defendant (the applicant) in the relevant criminal proceedings, it had formed the view that the risk of prejudice or impairment to the proceedings did not exist in the way that it might if multiple parties were being prosecuted following the incident. In those circumstances, the HSA stated that it no longer considered section 32 to apply.
I have examined the records and carefully considered the arguments of the parties, and find as follows. Firstly, I would note that the fact that it may be open to an applicant to seek the records via Discovery in the context of pending criminal proceedings does preclude him or her from seeking access to the records under FOI. In this regard I am informed by a previous decision of this Office, Case 020179, in which the then-Commissioner did not accept that obtaining documents in advance of an order for Discovery could affect the fairness of the proceedings in that case. She said that she was aware of no restrictions on the use of the FOI Act as a means of obtaining documents held by a FOI body which might otherwise be available through the process of Discovery.
In relation to whether the release of the records under FOI could, in fact, be reasonably expected to prejudice or impair the fairness of the pending criminal proceedings, firstly I would note that the wording of section 32(1)(a)(iv), which requires an FOI body to show prejudice or impairment to the relevant proceedings, sets a high bar in relation to the exemption provided by that provision of the FOI Act, and it does not follow from the fact alone of information pertaining to the proceedings being released under FOI that this bar is cleared. For instance, the fact that release of the relevant records may provide the applicant with information in a situation where there is not a corresponding requirement on the applicant to provide the prosecution with similar information does not, in and of itself, prejudice or impair the fairness of the proceedings. Indeed, in a criminal trial, as a matter of standard procedure, a Book of Evidence is served by the prosecution disclosing the evidence which it will be presenting during a course of a trial, and this manifestly does not affect the fairness of any such trial. The principal purpose of section 32(1)(a)(iv) is to prevent the disclosure of information which could result in unfairness in the conduct of the relevant proceedings. The fact alone that proceedings are pending does not, in and of itself, mean that the release of records could reasonably be expected to prejudice the fairness of those proceedings. Furthermore, the making available by an FOI body of evidence in advance of a hearing does not, in principle, prejudice or impair the fairness of the hearing.
This being said, while I accept the applicant’s solicitor’s contention that the applicant in this case has no intention of further circulating the records, the fact remains that the FOI Act places no limitation on the use to which records released under FOI may be put, and I must view the release of records under FOI as, essentially, release to the world at large. Furthermore, section 13(4) of the FOI Act requires me to disregard the possible motives of an applicant in seeking the information in the records (except insofar as those motives might be relevant to considerations of the public interest). Therefore, it is not open to me to take into account the question of the applicant’s intentions vis-à-vis the records (ie. whether or not it would intend to further disseminate them) in deciding whether they should be released. I also accept the HPRA’s contention that, as it is not itself the prosecuting party, the comments of the Supreme Court in the McKee judgment cited by the applicant’s solicitor do not pertain to it.
I have carefully considered the principal specific harm asserted by the HPRA – namely that, because the release of information under FOI is generally regarded as release (at least potentially) to the world at large, disclosure of the records could result in members of a jury becoming aware of their contents and drawing inferences from, or reaching conclusions on the basis of, the records absent any proper context or legal argument, and that this would adversely affect the fairness of the proceedings. I find as follows in relation to that assertion. I would accept that there are many instances where the release of information could result in unfairness – for example, where such release would result in prejudicial pre-trial publicity, or enable the manufacture of evidence or the interference with potential witnesses, etc. I would further accept that release under FOI could result in the records in this case coming to the attention of a juror, and that any such juror might well draw inferences from the records. However, to my mind it does not follow that this would be likely to result in prejudice to, or impairment of, the proceedings. There is nothing to prevent the defence in the pending trial from rebutting the evidence against the applicant, which it would be required to do in any case, irrespective of the release of the records at issue. Equally, there is nothing to prevent the prosecution in the forthcoming proceedings from refuting any information in the records which might weaken its case. Moreover, I consider that, from the point of view of a juror, the court hearing and consideration of (and legal arguments around) the evidence in the case are likely to have far greater impact than any viewing of records released under FOI in advance of the case. In any case, any inferences or conclusions that may have been drawn by such a juror can be effectively obviated by warnings and directions by the judge to the jury as and when appropriate. Indeed, the jury system in criminal trials is based upon the assumption that the jury will follow the judge's instructions.
Accordingly, in light of the above analysis, and based on the contents of the records, I am not satisfied that that prejudice or impairment to the relevant proceedings could reasonably be expected to result from the release of the records (or parts of records) that the HPRA has sought to withhold under section 32(1)(a)(iv). I find that the relevant information in those records – in addition to the material in category 3, record 7 that I have found to be within scope – is not exempt from release under that provision of the FOI Act.
The HPRA also relied on a number of other provisions of the FOI Act to withhold these records in full or part, and I examine below the extent to which it was justified in doing so.
Section 29(1)
The HPRA relied on section 29(1) of the FOI Act to withhold in full category 1, record 5 (and the attachment to the record), 6 (and the attachment to the record) and 7, and category 2, records 3 and 4 (which as noted above is identical to the attachment to category 3, record 8), and in part the within-scope parts of category 3, records 5.1 (attachment to category 3, record 5), category 3, record 6.1 (attachment to category 3, record 6), and category 3, records 9 and 9.2 (attachment to category 3, record 9). I will also consider the potential applicability of section 29(1) to the parts of category 3, record 7 that I have found to be in scope.
Section 29(1) provides that an FOI body may refuse to grant access to a record if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and (b) the granting of the request would, in the opinion of the body, be contrary to the public interest. Thus, the exemption at section 29(1) has two requirements: the record must contain matter relating to the deliberative process, and its disclosure must be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to the satisfaction of this Office that both requirements have been met. It should also be noted that the exemption does not apply in so far as the record(s) contain any of the information or matter referred to in section 29(2) of the Act. Thus, where an FOI body is relying on section 29(1) for the refusal of a record, it must also consider whether section 29(2) applies in relation to the record concerned.
In its submissions on section 29(1)(a), the HPRA said that the relevant deliberative process was the HSA’s investigation of the incident. In its submissions, the HSA stated that, as part of the development of a safety alert and updates that it issued in the wake of the incident, opinions, advice and recommendations were shared between the two competent bodies (the HPRA and HSA) regarding the cause of the incident, and relating to the investigation, including warnings labels and operator instructions and the development of the safety alert. I have considered these submissions and would note firstly that the wording of section 29(1) (which refers to the deliberative processes of “an” FOI body) makes clear that the deliberative processes revealed by the records may be those of any FOI body, and not necessarily the body to which the FOI request is made. Thus I must consider whether the records contain matter relating to the deliberative processes, not only of the HPRA, but also the HSA. In this regard, I am not entirely satisfied that an investigation necessarily constitutes a deliberative process, as argued by the HPRA. While records relating to an investigation may, depending on context and circumstances and the contents of the records, have the necessary qualities of a deliberative process, this is not a given, and the HPRA has not elucidated the manner in which it considers that in this case the investigative process at issue fits the criteria in section 29(1)(a). It is relevant, in my view, that the FOI Act contains references to the protection of investigations and investigative processes, but these are contained in provisions that are separate to section 29 (eg. in sections 30 and 32).
I am more satisfied that the submissions of the HSA demonstrate that the records contain matter relating to its deliberative processes. The HSA has outlined that – for the purposes of developing a safety alert and issuing updates – opinions, advice and recommendations were shared between it and the HPRA regarding the cause of the incident, and relating to the investigation including warnings labels and operator instructions and the development of the safety alert. I have examined the contents of the records at issue and I accept in respect of category 1, record 6 and category 3, record 9.2, that they contain matter relating to the deliberative processes of the HSA (and, indeed, the HPRA in the context of its deliberative engagements with the HSA). These records therefore come within the scope of section 29(1)(a) in full.
In addition, I consider that, in the case of a number of the other records at issue, some but not all of the information therein relates the deliberative processes of the HPRA and HSA, so as to bring it within the scope of section 29(1)(a). In relation to category 2, record 4 (and the identical record category 3, record 8), I consider that the comments added to the record relate to the deliberative processes of the two bodies, as they contain suggested courses of action that require further consideration. However, I consider that the text in the body of the record shows the outcomes of the deliberations of the two bodies, rather than material disclosing the internal thinking processes within the bodies, and as such it is not within the scope of section 29(1)(a). In respect of category 3, record 5.1, I accept that the material redacted from the within-scope parts of this record under the heading “HPRA-HSA meeting of 26th August 2019”, at page 2 of the record, is matter relating to the deliberative processes of both bodies, and thus falls within the scope of section 29(1)(a). However, the remaining material redacted from page 2 seems to me to simply set out a summary of events so far in the investigation of the incident. To my mind, this essentially sets out the positions adopted by the bodies following their deliberations (ie. the investigative steps that each body decided to take on foot of their deliberations), as opposed to material disclosing the internal thinking processes within the bodies or the weighing up of options. Furthermore, I consider that the first part of category 3, record 7 that I have found to be within scope (the text at point 3 of the email of 10 July 2020, sent at 18:08) is subject to section 29(1)(a), as it demonstrates the HPRA to be considering varying options and courses of action. However, this does not apply to the second part of category 3, record 7 that I have found to be within scope (the text at email of 9 July 2020 sent at 16:31).
I am not satisfied that the remainder of the records at issue contain material relating to the deliberative processes of the bodies, and as such I consider that they fall outside the ambit of section 29(1)(a). Category 1, record 5, for example, is simply an email between the bodies attaching draft minutes. It does not contain material showing the bodies to be considering competing options or proposals with a view to making a decision on a particular matter. In relation to the attachment to category 1, record 5 (which I note is identical to category 2, record 3), as the minutes of a meeting between the bodies this captures the items that were under discussion at the meeting, and does not reveal either body to be, for example, weighing up competing options or course of action. In relation to category 1, record 7, to my mind this record discloses the outcomes of the HPRA’s deliberative processes, as opposed to revealing those processes themselves. In relation to the within-scope parts of category 3, record 6.1, I take the view that the relevant information sets out a summary of events so far in the examination of the causes of the incident by both bodies. I cannot see that it contains any material relating to the deliberative processes of either body. Similarly, in the case of category 3, record 9, this record simply indicates that proposals for certain further correspondence from the HPRA to the HSA are attached. The email gives no indication of what those proposals are and neither does it show the HPRA weighing up the potential merits of such further communications. As such, I do not consider that it contains matter relating to the HPRA’s deliberative processes.
In respect of the material that I have determined does fall within the ambit of section 29(1)(a) of the FOI Act (in other words, category 1, record 6 and category 3, record 9.2 in full, as well as the relevant parts of category 2, record 4 (and the identical record category 3, record 8) and category 3, records 5.1 and 7), I must go on to consider whether the test in section 29(1)(b) is also met. The public interest test at section 29(1)(b) is a strong test, and any arguments against release should be supported by the facts of the case and it should be shown how release of the record(s) would be contrary to the public interest. This Office has previously held that the FOI Act clearly envisages that there will be cases in which disclosure of the details of an FOI body’s deliberations – whether before or, in some cases, after a decision based on those deliberations has been made – would be against the public interest. However, this is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 should be substantiated and supported by the facts of the case. It is important that the FOI body shows to the satisfaction of this Office how granting access to the particular record(s) would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
In relation to section 29(1)(b), the HPRA argued for the existence of a public interest, to which the release of the records would be contrary, in allowing FOI bodies the necessary space to discuss matters with frankness and candour, as well as a public interest in allowing such bodies the ability to bring matters forward for criminal trial without undue release of materials that may impact the conduct of same. It also highlighted the public interest in the administration of justice and the public interest in allowing regulators the ability to make regulatory decisions without having to release the internal discussions that precede same. In its submissions on section 29(1)(b), the HSA stated that it would not be in the public interest to release information which was not finalised or which was subject to speculation where it related to information about the use of the product by members of the public. In other words, it argued that no information should be released that could be interpreted incorrectly or which could provide incomplete information to the public.
The solicitor for the applicant, in its submissions in favour of release, stated that the HPRA had not set out the manner in which it claimed the effect on the frankness and candour of its deliberations might justify the withholding of the information under section 29(1)(b). It stated that such a claim needed to be supported by the facts of each specific case, supported by detailed evidence and reasoning, and that the HPRA had not provided such supporting information. The applicant’s solicitor further argued that, if the deliberative process is at an end, the need to withhold the release of the information may be weakened. It noted that the HSA’s investigation into the matter was finished, and on foot of same a file had been handed over to the DPP and criminal proceedings commenced. There was, therefore, according to the applicant’s solicitor, no decision stemming from the deliberative process which was yet to be made or of which the applicant was not aware. Furthermore, the applicant’s solicitor noted that, as the relevant HSA safety alerts and updates had already issued, there was again no significant decision pending on foot of the deliberative process underpinning those alerts and updates.
I have carefully considered the arguments of all parties in relation to section 29(1)(b), as well as having analysed the contents of the records. I do not accept the HPRA’s arguments, in the context of the public interest test in section 29(1)(b), regarding the purported impact on the frankness and candour of its discussions. While this Office has previously indicated that, in exceptional cases, arguments regarding the inhibition of frankness and candour might be sustainable in the context of section 29(1)(b), we have also emphasised that such arguments must be supported by the facts of the case and the specific harm to the public interest flowing from that inhibition must be identified. On the basis of the contents of the records, it is not clear to me how the frankness and candour of the HPRA’s discussions might be affected by their release. Even if I were to accept that the frankness and candour of the HPRA’s discussions would be so affected, I cannot envisage a manner in which the release of the specific information in the relevant records could impact the ability of a public body to bring the relevant matters to criminal trial.
Furthermore, while I would accept that the remaining arguments of the HPRA, and those of the HSA, may well be valid in some circumstances, I am not convinced that they apply to the specific contents of all the records at issue. For instance, the material redacted from the within-scope parts of category 3, record 5.1, under the heading “HPRA-HSA meeting of 26th August 2019”, that I have found to satisfy the requirements of section 29(1)(a), takes the form of a number of recommended actions. However, these are all general, high-level steps that the two bodies have discussed, and I cannot envisage any manner in which the information might be said to be of such import that its release would be contrary to the public interest. I make a similar finding in relation to the material in category 2, record 4 (and category 3, record 8) and category 3, record 7 that I have found to be subject to section 29(1)(a). To my mind, the relevant material in these records is, again, relatively high-level and general and I cannot foresee any manner in which its release would be contrary to the public interest.
However, I make a different finding in respect of category 1, record 6 and category 3, record 9.2. The former contains a relatively substantial discussion of the matters relating to the deliberative process that I have identified in the record. The latter record, meanwhile, contains a discussion of the information and target audience for a proposed safety warning arising from the incident. In relation to these two records, I would accept the HSA’s argument that the information therein has the potential to mislead members of the public who might be users of the product, and that this would be contrary to the public interest. I take the view that the email thread comprising category 1, record 6 contains information that, were it to be released to the world at large, has the potential for causing confusion or uncertainty amongst users of the product, with a concurrent potential for a risk to the safety of such users. Similarly, I consider that the HSA safety alert attached to category 1, record 6, although marked as a draft, contains information in relation to, and directions for the use of, the product that, again, has the potential to mislead or cause confusion amongst users of the product, resulting in a potential risk to their safety. It should go without saying that such a result would be contrary to the public interest. In relation to category 3, record 9.2, I am likewise of the view that the record contains information that, were it released to the public at large, has the potential to misinform users of the product, with an accompanying potential risk to their safety, which would be contrary to the public interest.
In summary, therefore, I find that category 1, record 6 (including the attachment to the record) and category 3, record 9.2 are exempt from release under section 29(1) of the FOI Act. However, I find that the other records in respect of which the HPRA relied on section 29(1) are not so exempt. It remains for me to examine the extent to which these records might be exempt under the additional provisions of the FOI Act cited by the HPRA.
Section 30(1)(a)
The HPRA relied on section 30(1)(a) of the FOI Act to withhold access to category 1, records 5 (and the attachment to the record) and 7, and category 2, records 3 and 4 (which as noted above is identical to the attachment to category 3, record 8), and the within-scope parts of category 3, record 5.1, category 3, records 6.1 (attachment to category 3, record 6) and 9. I will also consider the potential applicability of section 29(1) to the parts of category 3, record 7 that I have found to be in scope. Section 30(1)(a) provides that an FOI body may refuse to grant an FOI request if access to the record concerned could, in the body’s opinion, reasonably be expected to 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. Where an FOI body seeks to rely on section 30(1)(a), it should firstly identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure, and secondly, having identified that harm, consider the reasonableness of any expectation that the harm will occur.
In its submissions on section 30(1)(a), the HPRA identified, as the relevant function it expected would be prejudiced by the release of the records, its ability to liaise with other State bodies with public safety functions, and to share with those same bodies records related to incidents or activities. The HPRA also indicated that its understanding was that the view of the HSA was that the release of records pertaining to an ongoing criminal
proceedings by the latter body could prejudice the effectiveness of future investigations/inquiries where consultation and cooperation with third-party regulatory bodies might be required. However, in its own submissions, the HSA stated that it did not consider section 30(1)(a) to apply.
In submissions made by the applicant’s solicitor, it stated firstly that no ongoing investigation existed and, furthermore, in relation to the HPRA’s position that the release of the records would prejudice the ability of the HPRA and HSA to share records associated with future investigations, that this was a blanket assertion on the HPRA’s part, and it had not explained how or why it considered this would happen. The applicant’s solicitor argued that the HPRA appeared to be attempting to assert a class-based protection for records relating to investigations/inquiries that required it to consult and/or collaborate with third party regulatory bodies, independent of any assessment of individual records.
I have considered the arguments of the parties above in the context of the contents of the records at issue and find as follows. First of all, I would accept that the HPRA has identified a relevant function for the purposes of section 30(1)(a) that it considers might be harmed by the release of the relevant records. As the applicant’s solicitor has pointed out, the relevant HSA investigation is complete. However, the exemption at section 30(1)(a) may also relate to future tests, examinations, investigations etc, and the HPRA’s position is that its ability to liaise generally with other State bodies with public safety functions, and to share with those same bodies records related to incidents or activities, is in itself a function for the purposes of section 30(1)(a). As a general principle, I would be prepared to accept that the release of records that would impact the HPRA’s ability in this regard might be said to have the potential to prejudice the “methods employed” for the conduct of future investigations. However, I do not accept that the specific information in the records at issue could reasonably be expected to result in this outcome. For example, the content of the emails comprising category 1, record 5 seems to me to comprise quite routine and uncontroversial correspondence between the HPRA and HSA, and there is nothing in the emails the release of which, it seems to me, could reasonably be expected to result in the harms identified by the HPRA. I make the same finding in relation to category 1, record 7. This is an update from the HPRA to the HSA setting out certain findings. There is nothing about the content of this record that I can envisage would adversely impact its ability to liaise with other state agencies with public safety functions. In relation to the relevant parts of the attachment to category 1, record 5 (the draft minutes of the HPRA/HSA meeting of 26 August 2019) (ie. the material redacted by the HSA at point 2 of the minutes, and the first two sentences from paragraph 2 of point 4 of the minutes), this again appears to me to be quite basic, uncontroversial factual information. The same reasoning, and finding, also apply to category 2, records 2 and 3, which comprise versions of the same minutes, and the relevant parts of category 2, record 4 (and category 3, record 8). In relation to the material in category 3, record 7 that I have found to be within scope, while I would accept that it shows the HPRA and HSA to be in ongoing dialogue, I can identify nothing in either of the relevant passages of text that it seems to me would tend to affect the ability of the two bodies to liaise (or to affect the HPRA’s ability to liaise with other relevant agencies).
Accordingly, I find that none of the relevant records – category 1, records 5 (and its attachment) and 7, category 2, records 3 and 4 (and the identical record category 3, record8) the within-scope parts of category 3, record 5.1, category 3, records 6.1 and 9 and the within-scope parts of category 3, record 7 – are exempt from release under section 30(1)(a) of the FOI Act.
Section 31(1)
The HPRA relied on subsections (a) and (b) of section 31(1) of the FOI Act to refuse access to category 1, records 5 (and the attachment to same) and 7, category 2, records 3 (which as noted above is identical to the attachment to category 1, record 5), and 4 (which as noted above is identical to category 3, record 8), category 3, record 4 and the within-scope parts of category 3, records 5.1, and 6.1. In relation to the parts of category 3, record 7 that I have found to be within scope, I am satisfied that section 31(1) is not relevant. The HPRA also cited section 31(1)(a), but not subsection (b) to withhold access to the email dated 15 January 2019 on page 2 of category 3, record 10, which I note is identical to the email comprising category 3, record 4.
Section 31(1) of the FOI Act provides for the mandatory refusal of an FOI request where the record concerned (a) would be exempt from production in proceedings in a court on the grounds of legal professional privilege, or (b) is such that the FOI body knows or ought reasonably to have known that its disclosure would constitute contempt of court.
In relation to section 31(1)(b) first of all, the HPRA argued that release of documentary evidence under FOI in relation to on-going criminal proceedings may be considered a breach of the sub judice rule and considered contempt of court. It noted that specific prejudice should arise in considering a breach of the sub judice rule and, while seeking to rely on section 31(1)(b), also stated that it was not able to directly confirm that contempt of court would arise from the release of the relevant records. As noted above, I sought submissions from the DPP and the HSA in this case, in circumstances where the DPP is prosecuting a criminal trial against the applicant based on the HSA’s investigation. The former body declined to make submissions while the HSA, in its submissions, did not seek to rely on section 31(1). Furthermore, in submissions made by the applicant’s solicitor, it argued that there was no court order or undertaking made to a court prohibiting the disclosure of the records. The applicant’s solicitor argued that, to successfully rely on section 31(1)(b), the HPRA was required to show a real risk as opposed to a merely remote possibility of prejudice, and that it had not done so. I am minded to accept this argument, particularly given that neither the DPP nor the HSA has argued that the release of the records would constitute contempt of court, and that the HPRA has not, itself, been able to confirm the manner in which it considers contempt could arise. As noted above, under section 22(12)(b) of the FOI Act, the onus is on the HPRA to satisfy the Commissioner that its decision to refuse access was justified. Bearing this in mind, I can identify no grounds on which it might be argued, or on which indeed the HPRA has argued, that release of the relevant records might constitute contempt of court, and I am therefore satisfied that section 31(1)(b) does not apply.
In relation to section 31(1)(a), there are two types of Legal Professional Privilege (LPP) to consider: legal advice privilege and litigation privilege. The HPRA argued that legal advice privilege applied to the records that had its in-house legal advisor included as a recipient on the relevant communications. This appears to apply only to category 3, record 4 and the identical email at page 2 of category 3, record 10. The HPRA argued that litigation privilege also applied to the records, on the basis that the correspondence between it and the HSA took place in the context of contemplated court proceedings. In submissions received from the applicant’s solicitor, it did not specifically address legal advice privilege. It argued that litigation privilege did not apply as the dominant purpose for the creation of the relevant records was not litigation, or the contemplation of litigation (which is a prerequisite for litigation privilege to apply). Rather, the applicant’s solicitor argued, the records were created as part of a fact-finding exercise.
In relation to category 3 record 4 and the identical email at page 2 of category 3, record 10, it should be noted that legal advice privilege attaches to confidential communications made between a client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice. The communication must be made in the context of the legal adviser in their professional capacity. It is also relevant that communications between a client and their legal adviser may enjoy legal advice privilege even where they do not specifically seek or convey legal advice. The general position of this Office is that legal advice privilege attaches to records that form a continuum of correspondence that results from an original request for advice. I note that the HPRA’s in-house legal adviser is copied with the correspondence that forms the record. There is no explicit request for legal advice (indeed none of the records demonstrate such a request) and, in addition, it is not clear that the record forms part of a continuum of correspondence that results from an explicit request for advice. It does not seem to me that the mere fact alone of an in-house legal adviser being copied with correspondence is necessarily sufficient, in all cases, to render it subject to legal advice privilege. This being said, I note that in this case the record makes reference to a duty of confidentiality to which the HPRA may be subject under relevant legislation. I consider that, in copying its in-house legal adviser with an email on a topic with regard to which a legal issue arises, the intention of the HPRA can only have been to put the adviser on notice that its professional view on the matter was required. I also consider that, based on the contents of the record, the communications therein were intended to be confidential between sender and recipients. In those circumstances, I am satisfied that legal advice privilege attaches to category 3, record 4 and the identical email at page 2 of category 3, record 10, and this information is therefore exempt from release under section 31(1)(a) of the FOI Act.
In respect of the other records at issue, which the HPRA argued are subject to litigation privilege, I find as follows. I have examined the records and consider that they do not appear to have been created with the dominant purpose of litigation, actual or contemplated. While it seems that actual or contemplated litigation was certainly one consideration in the creation of the records, my view is that the applicant’s solicitor is correct to argue that an equally significant purpose for the creation of the records was as part of a fact-finding exercise. Specifically, it seems to me that the records relate to an investigation into the causes of the incident. It would seem to be the case that a decision to bring criminal charges was one possible outcome of the investigation (which, indeed, transpired to be the case). However, at the stage of fact-finding regarding the causes of the incident, when a decision to prosecute was presumably only one of a number of potential outcomes, I cannot accept that litigation was the dominant purpose for which the records were created. Therefore, litigation privilege does not attach to category 1, records 5 (and the attachment to same) or 7, category 2, records 3 or 4, or the within-scope parts of category 3, records 5.1, and 6.1. These records, or parts of records, are accordingly not exempt from release under section 31(1)(a).
In summary, I find that legal advice privilege attaches to category 3, record 4 and the identical email at page 2 of category 3, record 10, and this information is therefore exempt from release under section 31(1)(a) of the FOI Act. However, I find that the remaining records in respect of which the HPRA cited section 31(1)(a) are not so exempt. I also find that section 31(1)(b) does not apply to exempt from release any of the records that the HPRA withheld under that provision of the FOI Act.
Section 35(1)(a)
The HPRA relied on section 35(1)(a) of the FOI Act to withhold category 1, records 5 (and the attachment to same) and 7, as well as category 2, record 3 (which as noted above is identical to the attachment to category 1, record 5), category 2, record 4 (which as noted above is identical to category 3, record 8), and the within-scope parts of category 3 record 5.1. I will also consider the potential applicability of section 35(1)(a) to the parts of category 3, record 7 that I have found to be in scope.
Section 35(1)(a) concerns information given to an FOI body on confidence. However, before I consider its potential applicability, in my view I am required to examine section 35(2), which provides that section 35(1) shall not apply to a record that was prepared by a head, director or staff member of, or service provider to, an FOI body, and that was prepared in the course of the performance of his or her functions, unless disclosure wold constitute a breach of a duty of confidence that is owed to a person other than an FOI body, or a head, director, or member of staff of an FOI body or of a service provider to same. In this case, the relevant records were created by the HPRA and/or the HSA, in the performance of the functions of each body. Insofar as it might be argued that a duty of confidentiality exists in relation to the contents of the records created by the HPRA, the only body to whom such duty might be owed, as far as I can ascertain, is the HSA, which is itself an FOI body. Similarly, any duty of confidentiality that might be said to exist regarding the records created by the HSA would seem to be owed only to the HPRA. Accordingly, I find that section 35(2) precludes the application of section 35(1)(a), and therefore neither category 1, records 5 (and the attachment to same) or 7, category 2, records 3 or 4 (or the identical material in category 3, record 8), nor the within-scope parts of category 3, records 5.1 or 7 can be exempt under the latter provision of the FOI Act.
Section 36(1)
I have found above that the majority of the information in the records in respect of which the HPRA cited section 36(1) is outside the scope of this review, on the basis that it is information to which the applicant’s FOI request did not seek access. I am also satisfied that section 36(1) is not relevant to the parts of category 3, record 7 that I have found to be within scope. However, there is a small amount of material in the records in respect of which the HPRA cited section 36(1) which I consider is within scope. This material is the third and fourth redactions made to category 3, record 3 (at point 3 of the email of 4 June 2020, and point 1 of the email of 28 May 2020). In relation to this material, I note that section 36(2)(c) of the FOI Act states that section 36(1) shall not apply where the information at issue “relates only to the requester”. Given that the relevant redactions are of the applicant’s own name, section 36(2)(c) operates to disapply section 36(1) in respect of this information. The relevant material in category 3, record 3 is therefore not exempt under section 36(1).
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HPRA’s decision. I find that certain information in the records, which I have identified above, is outside the scope of the FOI request and does not fall to be released. I find that the HPRA was entitled under section 29(1)(a) of the FOI Act to refuse access to category 1, record 6 (including the attachment to the record) and category 3, record 9.2. I further find that the HPRA was justified under section 31(1)(a) of the FOI Act in withholding access to category 3, record 4 and the identical email at page 2 of category 3, record 10. However, I find that the remainder of the within-scope information in the records is not exempt under any of the provisions of the FOI Act cited by the HPRA, and I direct the release of this information.
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.
Neill Dougan
Investigator