Decision
Mr X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: 110227
Published on
From Office of the Information Commissioner (OIC)
Case number: 110227
Published on
Whether the HSE was justified in its decision to refuse access to records relating to the co-location hospital project on the basis that the records are exempt under sections 19(1)(a), 21(1)(c), 22(1)(a), 26(1), 27(1), 28(1), and 31(1) of the FOI Act
31 July 2014
On 7 March 2011, the applicant made an FOI request to the HSE requesting access to records referring to project agreements between his companies and the HSE around March 2008 in relation to the then proposed co-location of publicly and privately funded hospitals. He requested 'records in relation to 1) the subject matter of the contracts awarded to [his companies], 2) the contract awarded in respect of St. James' Hospital, 3) co-location policy or any policy relating to the treatment of private patients in public, semi-public or co-located hospital accommodation as a whole.'
The applicant requested an internal review decision on 9 May 2011 as no decision was received from the HSE to his FOI request. Following communications from the HSE, the applicant withdrew his internal review request pending the receipt of a folder of records on the understanding that he would resubmit his internal review request if he was not satisfied with the records released. Solicitors acting on behalf of the HSE released a folder of records on 7 June 2011. On 8 June 2011 the applicant resubmitted his internal review application as he was not satisfied that a full response had been received, but did not receive a response to that application. On 24 November 2011, the applicant wrote to the Information Commissioner seeking a review of the HSE decision. The HSE told this Office that on 6 February 2012, when the records subject to this review were being prepared by the HSE for onward transmission to this Office, the applicant's internal review request letter dated 8 June 2011 was found. As no decision was issued with the folder of records, this Office asked the HSE to examine the records and inform this Office of its position on the records. On 6 June 2012 the HSE issued an 'effective decision' enclosing a schedule of the relevant records.
On 6 July 2012 the applicant narrowed the scope of this request to 51 records which he identified on the schedule provided by the HSE. He also requested access to 'minutes and notes of meetings at which both parties were present'. The HSE responded that records of minutes of meetings were included in the scheduled records. During the course of this review following consultation with this Office, the HSE released additional records. A number of records/portions of records were deemed by the HSE to be outside the scope of this review as the content referred to other bidders, are dated outside the periods requested in the original FOI request or do not refer to the subject matter. Using the numbering system as adopted by the HSE for ease of reference, these records are numbered: 1A.1/17, 1A.3/3 part, 1A.6/6 part, 1B.2/1 part, 1B5/20, 1B.5/24 part, 1B.11/6 part, 1B.12/15 part, 2.3/24 part, 2.3/27 part, 3.2/11 part, 3.3/37 part, 3.3/44, 3.5/31 part, 4.1/11, 5.3/16, 5.3/35, 5.3/39 and 5.4/95.
Ms Alison McCulloch, Investigator in this Office wrote to the applicant on 2 July 2014 outlining her view that she agreed with the HSE that 1) the records identified above are outside the scope of this review and 2) the records withheld are exempt from release on the basis of the exemptions claimed by the HSE. In this letter, Ms McCulloch also sought clarification of three records identified by the applicant in his letter of 6 July 2012 which did not correspond to the numbers used by the HSE. As no response was received from the applicant to this request for clarification, it was not practicable for Ms McCulloch to pursue the matter of the three withheld records any further with the HSE. Therefore, I see no reason not to agree that the records listed above are outside the scope of this review. Accordingly, the withheld records, remaining within the scope, again using the numbering system adopted by the HSE, are as follows: 1A.1/4, 1A.1/8, 1A.6/6 part, 1A.7/3, 1A.11/15, 1A.19/10, 1B.5/24 part, 1B.12/15 part, 2.6/6 part, 3.2/11 part, 3.3/18, 3.3/42 part and 3.5/31 part. As the applicant did not respond to the letter of 2 July 2014, I have decided to conclude this review by issuing a formal binding decision.
In conducting the review, I have had regard to the correspondence between the applicant and the HSE, to the submissions of the HSE and the applicant and to the provisions of the FOI Acts. I have also had regard to the contents of the records provided by the HSE for the purposes of this review.
Therefore, this review is concerned solely, with the question of whether the HSE was justified in its decision to refuse access to the records/portions of records identified above, under various sections of the FOI Act.
Firstly I should draw attention to section 13 of the FOI Act which provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 13 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.
Section 19(1)(a) provides that a record shall be not be released pursuant to an FOI request where the record has been, or is proposed to be, submitted to the Government for its consideration, by a Minister of the Government or the Attorney General, and was created for that purpose. Section 19(1)(a) of the FOI Act is a mandatory exemption and therefore must be applied to records that meet the criteria therein. Previous decisions by the Information Commissioner have accepted that section 19(1)(a) applies to records such as Memorandums for Government, Aides Memoire for Government, or preliminary or draft versions of the whole or part of such documents. Record 3.3/18 is a draft Memorandum for Government and the attaching email contains preliminary observations on the draft Memorandum for Government. Having examined it, I am satisfied that the record, including the attached email, was created for the purpose of being submitted to the Government for its consideration. Therefore, I find that this record is exempt from release under section 19(1)(a) of the FOI Act.
The HSE relied on section 22(1)(a) of the FOI Act in refusing access, in whole or in part, to records numbered 1A.1/4, 1A.1/8, 1A.6/6 part, 1A.11/15, 1A.19/10, 1B.5/24 part, 1B.12/15 part, 2.6/6 part, 3.2/11 part, 3.3/42 part and 3.5/31 part. Section 22(1)(a) provides for the withholding of a record where it would be exempt from production in proceedings in a court on the ground of legal professional privilege. The Information Commissioner accepts that legal professional privilege enables the client to maintain the confidentiality of two types of communication:
This exemption does not contain a public interest balancing test. I have examined the records withheld by the HSE, either in whole or in part, under section 22(1)(a) and taking account of the above, I find that section 22(1)(a) applies in the case of each record as I am satisfied that the information withheld contains legal advice provided to the HSE.
Section 46(1)(b) provides that the FOI Act does not apply to a record held or created by the Attorney General other than a record concerning the general administration of that Office. It is clear from inspection that record number 1A.7/3 is a document created by the Office of the Attorney General and, having examined its contents, I am satisfied that the record does not relate to the general administration of that Office. Accordingly, I find that the FOI Act does not apply to the record in question and that the HSE is justified in its reliance on section 46(1)(b) of the FOI Act to refuse access to the record.
As I have found that the records subject to this review have been properly exempted from release in line with the provisions considered above, there is no need for me to consider the further application by the HSE of any other sections to these records.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the HSE in this case. I find that the HSE was justified in its decision to refuse access to the records/portions of records identified below under various sections of the FOI Act:
Records/portions of records numbered: 1A.1/4, 1A.1/8, 1A.6/6 part, 1A.7/3, 1A.11/15, 1A.19/10, 1B.5/24 part, 1B.12/15 part, 2.3/28, 2.6/6 part, 3.2/11 part, 3.3/18, 3.3/42 part and 3.5/31 part.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Sean Garvey
Senior Investigator