Decision
Ms S and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: 130104
Published on
From Office of the Information Commissioner (OIC)
Case number: 130104
Published on
Whether the HSE was justified in refusing the applicant's request for records concerning the website www.mygp.ie on the basis of section 26(1) of the FOI Act.
14 March 2014
On 18 December 2012, the applicant made an FOI request for
1) All documents including correspondence/reports/audits/memos held by the HSE relating to www.mygp.ie
2) Specifically all correspondence between the HSE and the Irish Medical Organisation relating to funding and operation of www.mygp.ie
3) All documents pertaining to the discontinuance of the website
4) A list of GPs who were involved in the scheme
5) A list of GPs who received funds to re-invest in their practices under the scheme and a breakdown of how much was made available for re-investment
6) All documents relating to any outstanding funds owed by GPs to the HSE and correspondence to identify those GPs
7) All correspondence between the HSE and the then Minister, the Department of Health and/or government officials relating to the efficiency and funding of www.mygp.ie
The HSE issued its decision on 21 February 2013 refusing access to the requested records on the basis of section 26(1) of the FOI Act. On 27 March 2013, the internal reviewer affirmed the original decision and refused access to the records on the basis on section 26(1)(b). Subsequently, on 1 May 2013, the applicant applied to this Office for review of the HSE decision.
In conducting my review I have had regard to the application from the applicant, the submissions from the HSE and the third party and to correspondence between the applicant and the HSE. I have also had regard to the contents of the records provided to this Office by the HSE and to the provisions of the FOI Act.
The issue in this review is whether the HSE was justified in its decision to refuse access to the requested records on the basis of section 26(1)(b).
Firstly, I would like to draw attention to section 34(12)(b) of the FOI Act which provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to the Commissioner's satisfaction that its decision was justified.
The HSE relied on section 26(1)(b) to refuse access to the withheld records which provides that a request for access to a record shall be refused "if disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment ...or otherwise by law ".
Confidentiality Agreement
The HSE said that it is not in a position to release any of the requested records as they are subject to a confidentiality clause as part of an agreement it entered into with a third party. It said that on receipt of this FOI request the HSE had taken legal advice and was advised that if it breached the terms of the clause, it would be in breach of contract and susceptible to High Court litigation for (a) breach of contract and/or (b) breach of confidence. It also said that it had written to the other party on two occasions asking them to agree to the confidentiality restrictions being lifted for the purposes of the FOI request, but that, to date, the other party has not agreed to this.
The confidentiality clause in the agreement between the HSE and the third party states that neither the agreement nor the matters discussed between them shall be disclosed to any other party. Without expressing any opinion on the validity or otherwise of the HSE's contention that 26(1)(b) applies to the agreement, it seems to me that "matters discussed" would refer to any minutes or written reports of the meeting at which the agreement was reached but would not refer to, for example, records relating to the funding of the site. However, the HSE adopted a blanket approach by claiming that section 26(1)(b) applies to all the records contained in the two folders of documents relevant to the review, it provided to this Office and did not examine the documents on a record by record basis. Included in the folders are PQ's, background information on the website, invoices etc which on the face of it, do not appear to be exempt on the basis of section 26(1)(b).
Having undertaken an initial examination of a sample of the records, I do not accept that the confidentiality clause would include all the records withheld by the HSE.
The records identified by the HSE as being within the scope of this request were not examined on a record by record basis. Included in these records, as stated above, are records which do not appear to be covered by the confidentiality clause referred to above, irrespective of the validity or otherwise of that clause in the context of section 26(1)(b). However on the basis of my initial examination, I am satisfied there are some records which should be exempted from release on the basis of other exemptions of the FOI Act and others which should be released. It seems that the HSE has not undertaken any substantial consideration of the content of the individual records. I consider that it is not appropriate or valid for the Commissioner to take the same blanket approach adopted by the HSE in this case. Therefore, taking account of section 34(12)(b) and following careful consideration, it is my view that the decision of the HSE should be annulled and I find accordingly. The effect of this is that the HSE is required to make a new, first instance, decision in respect of the applicant's original request.
Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the HSE in this case and direct that the HSE now conduct a new decision-making process.
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 after notice of the decision was given to the person bringing the appeal.
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Sean Garvey
Senior Investigator