Decision
Mr. X and The Health Service Executive (the HSE)
From Office of the Information Commissioner (OIC)
Case number: OIC-153873-Z0W3F0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-153873-Z0W3F0
Published on
Whether the HSE was justified in refusing access to a breakdown of legal costs it incurred in respect of a specified set of proceedings on the basis of sections 36(1)(b) and/or 37(1) of the FOI Act
8 September 2025
In a request dated 17 September 2024, the applicant sought access to a breakdown of legal costs incurred by the HSE in respect of a High Court appeal taken against a decision of the Information Commissioner (Record No. 2023/35 MCA). He specified that this breakdown should include: Senior Counsel(s), Junior Counsel(s), external solicitors, in-house solicitors, the broken down legal costs of other parties paid by the HSE and all other legal costs. In its decision dated 14 October 2024, the HSE part-granted the request. It provided the overall figure incurred by the HSE in the case but refused access to any further breakdown on the basis of section 36(1)(b) of the FOI Act. On 17 October 2024, the applicant sought an internal review of the HSE’s decision. He made submissions in support of his application for internal review which I will refer to below as appropriate. On 6 November 2024, the HSE affirmed its original decision. On 22 November 2024, the applicant applied to this Office for a review of the HSE’s decision. He also queried whether the overall figure supplied was accurate.
During the course of the review, and in light of the information requested and the submissions received, this Office notified relevant third parties of the review and provided them with an opportunity to make submissions. Two of the three notified parties duly did so and the submissions will be referenced below as appropriate.
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 applicant and the HSE as outlined above, to the correspondence between this Office and both parties during the review, and to the submissions made by the notified third parties. I have also examined the information at issue. I have decided to conclude this review by way of a formal, binding decision.
In submissions to this Office during the course of the review, one of the affected third parties argued that section 37 of the FOI Act, which provides for the protection of third-party personal information, also applies to exempt the information requested. As section 37 is a mandatory exemption, I will consider its applicability below.
Accordingly, this review is concerned solely with whether the HSE was justified in refusing access to the breakdown of legal costs incurred in respect of specified High Court proceedings under sections 36(1)(b) and 37(1) of the FOI Act.
Before I address the substantive issues arising, I would like to make some preliminary comments. First, I note that in his correspondence with the HSE and with this Office, the applicant queried the accuracy of the overall legal cost figure provided by the HSE. In particular, he said that the overall figure seems to be “extremely low and totally out of step with what one would expect in such a case, that involved two days in the High Court, with senior and junior counsel, and an external law firm ”. He also said that the HSE had to cover the legal costs of the Notice Party to the appeal. In its submissions to this Office, the HSE provided a breakdown of the costs incurred in respect of the various parties. While section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record, I do not believe that I am in breach of that provision by explaining that the overall costs incurred as released by the HSE did not include costs incurred in respect of work undertaken by its own in-house legal staff or costs incurred in respect of the Notice Party to the appeal. It said that third party fees are discharged by the State Claims Agency under its delegated function as set out in Statutory Instrument S.I. 191 of 2018. It said that the applicant would have to contact the SCA to establish any such legal costs. I am satisfied with the explanation provided and will not consider that particular information further.
Secondly, it is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the FOI body shows to the Commissioner’s satisfaction that its decision was justified. This means that the onus is on the HSE to satisfy this Office that its decision to refuse access to the information sought was justified.
Finally, one of the barristers notified of the review said that it would be helpful to understand the basis upon which the applicant sought a review and the reasons why they say that exemptions do not apply. She requested a copy of the application or any submissions to this Office. While noting that it is not the practice of this Office to exchange submissions between parties to a review, the Investigator provided the barrister with an overview of the applicant’s position.
In submissions subsequently received, the barrister noted that the identity of the requester had not been released. She said she did not understand the basis for that decision as it seems unfair that the requester knows her identity. Furthermore, she said that while motivation for a request may not be relevant for the purposes of the review, the manner in which information may be used or the context in which it is sought could be relevant to the issues being considered by the Commissioner. By way of example, she said that if the requester is a journalist, the fact that the information may be published in the media and subject to commentary could be relevant. She said that if the requester was another legal professional, this could be relevant to issues such as harm or the application of the public interest balancing test. She also said that the fact that she had not been provided with any context in respect of the request or the circumstances in which it arises places her at a “significant disadvantage ” as regards her ability to address the application of the exemptions. She noted that while she was provided with a summary of the position of the requester, this was not particularly illuminating based on the contents.
Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Moreover, the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. FOI is not generally about granting access to information to particular individuals only. Thus, records are not released under FOI for any limited or restricted purpose and the identity of a requester is not generally a relevant consideration.
In respect of submissions received, reviews undertaken by this Office are inquisitorial, as opposed to adversarial, in nature. While it is not the practice of this Office to exchange submissions between parties to a review, we take care to ensure that the parties are notified of material issues arising for consideration. I am satisfied that all material points raised by the applicant in this case were provided. I would also note that the High Court has previously considered the fairness of our procedures in the context of our treatment of submissions. Specifically, Quirke J made the following comments in The National Maternity Hospital v the Information Commissioner [2007] IEHC 113:
“I know of no principle of natural or constitutional law or justice which confers upon parties who make submissions to a decision-making body the right to respond to the submissions made by every other party who participates in the process. The review undertaken by the Commissioner was a statutory process which expressly envisaged and permitted the adoption of informal procedures ”.
Under section 45(6) of the FOI Act, the Commissioner has discretion to adopt such procedures as are appropriate in all the circumstances of a case. In all circumstances, this Office aims to ensure that the approach adopted is fair, and seen to be fair, to all the parties concerned. In sum, I am satisfied that the third party was on notice of all material issues of relevance to the review and was afforded an appropriate opportunity to make submissions. In addition, the party was notified that while the applicant did not make lengthy submissions to this Office, the onus is on the HSE to justify its decision.
Section 36(1)(b)
Section 36(1)(b) of the FOI Act provides that an FOI body shall refuse to grant a request if the disclosure of the record sought could reasonably be expected to result in financial loss or gain to the person to whom the information relates or could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release.
The harm test in the first part of section 36(1)(b) is that disclosure “could reasonably be expected to result in material loss or gain ”. This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker’s expectation is reasonable. The harm test in the second part of section 36(1)(b) is that disclosure of the information “could prejudice the competitive position ” of the person in the conduct of their business or profession. The standard of proof to be met here is lower than the “could reasonably be expected ” test in the first part of this exemption. However, this Office takes the view that, in invoking “prejudice ”, the damage that could occur must be specified with a reasonable degree of clarity.
In its submissions to this Office, the HSE said that it “does not wish to release details of fees paid to counsel or to our solicitors ”. It said that it has provided details of the total legal costs which provide sufficient detail for the applicant. It said that the provision of a more detailed breakdown will harm the HSE’s future negotiating position while providing no additional information of worth to the applicant.
The HSE made submissions in respect of the rates for which legal advice is provided by contracted solicitor firms. It said that such rates were secured following an extensive and competitive tender process. It said that it is essential for the operation of the HSE’s Office of Legal Services that the rates are kept low to minimise costs to the taxpayer. It said that if the rates became known to the wider public then other clients of the firms on the panel would expect to be charged those rates which would be problematic for the firms. It said that releasing this data could prejudice the competitive position of the firms. It said that it could impact ongoing or future procurement negotiations with the firms and could ultimately result in a financial disadvantage for both the firms and the HSE. It said that given the limited scale of the case that was taken to the High Court regarding the issue, it would not be difficult to establish the approximate number of hours involved and therefore the HSE rates.
The HSE said that counsel are paid an agreed rate in line with the body’s schedule of fees. It made submissions in respect of the work which formed the basis of the fee paid. It said that it would be easy to discern the rates the HSE pays. It said that it regards the counsel fee rates as commercially sensitive. It said that should they become more widely known then they may be compared to rates paid by other public bodies. It said that legal firms and counsel will, in future, be reluctant to engage with the HSE if their commercially sensitive information is released. It said that the public interest in the case is best served by the release of the total legal spend and a more detailed breakdown of the costs is likely to result in unnecessary additional costs to the taxpayer because the negotiating positions of the HSE, solicitors, and counsel will be compromised.
As noted above, submissions were received from two of the notified third parties; from one of the HSE’s legal counsel and from the external solicitors. In its submissions, the external solicitor firm agreed with the HSE’s application of section 36(1)(b). It said that the record clearly contains financial and commercial information of the firm, being the fee charged to the HSE for work relating to the specific litigation. It said that such information is commercially sensitive and should not be released. It said that in this case, the information also relates to a tendering process for work for the HSE and is highly confidential as a result. It noted that the HSE tenders for legal service providers and that this tendering process is very competitive with multiple legal firms competing for work. The party said that a key concern is that the release of the solicitor fee in this case would allow other solicitor firms and clients to know the fee being charged by this firm to the HSE for this type of work. It said that this could potentially allow the firms and/or clients to estimate the hourly fee rate that is being charged for legal work more generally. It said that other firms and clients would have a good understanding of the work involved in bringing such proceedings and could likely make a good estimate of the hourly fee rate charged.
In respect of the anticipated harms, the third party said that release could reasonably be expected to result in a material financial loss to the firm, as clients and competitors would know the fees charged. It said that competitors could estimate rates, providing them with a competitive advantage in future tenders for this or other public sector clients. It said that this would result in a material financial loss as the firm could lose tenders for such work in future. It said that release of the information would allow competitors to undercut the firm in future tenders, resulting in relevant harms. It said that this is particularly the case where the HSE procures a large amount of legal services from a number of firms arising from the tender. It also made certain submissions in respect of the fee rates which I will not repeat but which I have considered. The party effectively made the same submissions in respect of the harm test in the second part of section 36(1)(b). Its position is that release could prejudice its competitive position in the market for legal services.
Submissions were also received from one of the HSE’s barristers. Her position is that section 36(1)(b) applies to exempt the information requested. She said that disclosure of the total amount paid to her constitutes the disclosure of significant commercial information, the contents of which are sensitive and would ordinarily be known only to the individual, the solicitor and the client. She said that the disclosure of the information would demonstrate to any person the overall fees charged for a case of this nature. She said that the disclosure of this information could result in material loss to her as it would disclose information to both competitors and other potential clients and could result in competitors structuring fee estimates with a view to ensuring that their fees are lower than hers, thus impacting her ability to obtain work from other clients.
The barrister also noted that given the manner in which barristers are retained for work and the fact that it is rare to know either who is directly competing for work or the precise reasons why one barrister was retained over another, it would be almost impossible to demonstrate a direct causal link between the disclosure of the information and failure to be retained in future cases. She said that it would be unreasonable for the Commissioner to suggest that this would have to be demonstrated. She referenced the speculative nature of future work. However, she said that it is certainly the case that the placing of private information relating to her fees into the public domain has the potential to cause a material loss to her through the loss of other work. She said that the publication of fees paid in respect of a specific case would place her at a competitive disadvantage as regards other persons working in this area of law as competitors would be privy to commercially sensitive information about her where she does not have access to similar information about her competitors. She noted that the barrister profession operates so that barristers are in competition with other practitioners and compete directly with persons practising in this area of law for work. She said that there is a limited cohort of barristers practising in the area and that clients frequently approach a number of practitioners to obtain fee quotes as part of the process of deciding who to brief. She said that the disclosure of this information would allow competitors to understand the level of fees which she would charge and structure their fee estimates in a manner which would ensure they would charge less than her. She said that as such information is not generally available, she would be placed at a significant disadvantage as regards other persons practising in the area. She also made certain submissions about the relevant tests in section 36(1)(b). She said that the second part of the section “only requires that prejudice be demonstrated ” rather than it being necessary “to demonstrate actual harm ”. She said it is evident that the publication of commercially sensitive information which is not otherwise available would cause prejudice to her as it would give competitors access to information in circumstances where she does not have access to similar information.
Before I consider the substantive arguments in respect of the applicability of section 36(1)(b) to the information at issue, I wish to address a related argument raised by the barrister who made submissions. She argued that it would be almost impossible to demonstrate a direct causal link between the disclosure of the information at issue and failure to be retained in future cases and that it would be unreasonable for the Commissioner to suggest that this would have to be demonstrated. Section 36(1)(b) does not require it to be shown that the release of information will definitely cause a particular harm. As I have outlined above, the question of whether disclosure “could reasonably be expected to result in material loss or gain” is concerned with whether the decision maker’s expectation is reasonable. Moreover, while the standard of proof to be met in the harm test in the second part of section 36(1)(b), i.e. that disclosure of the information “could prejudice the competitive position ” of the person in the conduct of their business or profession, is lower than the “could reasonably be expected” test in the first part, we take the view that, in invoking “prejudice”, the damage that could occur must be specified with a reasonable degree of clarity. It is also worth restating that under section 22(12)(b) of the Act, the onus is on the HSE to satisfy the Information Commissioner that a decision to refuse a request was justified.
The essence of the argument presented by all parties in support of the withholding of the information at issue is that its release could result in relevant harms identified in section 36(1)(b) as the information could be used by competitors to give them a commercial advantage to the detriment of the HSE and of the parties whose information would be disclosed. The affected third parties who made submissions essentially argued that others would be sufficiently familiar with the work involved in a set of proceedings such as the one at issue to allow them to draw informed conclusions in respect of their fee breakdown and/or structure.
It is important to note that the information at issue in this case is high-level in nature. The breakdown sought by the applicant does not extend beyond identifying the total amounts paid to each of the relevant parties, such as Senior Counsel, Junior Counsel, external solicitors etc. While I accept that other competitors and clients may well have a good understanding of the work involved in bringing proceedings such as the ones at issue in this case, I do not accept that the release of the overall amount paid in respect of a particular set of proceedings would allow competitors or other clients to estimate the hourly fee rate or fee structure more generally. I note that the disclosure of the total amount paid would not disclose the level of detail that would, in my view, be necessary for any other party to draw conclusions with any reasonable degree of accuracy as to the hourly fee rate or fee structure charged. For example, even in circumstances where the applicant is aware of the number of hearing days before the High Court, the disclosure of the total amount paid would not disclose the number of overall actual hours of service provided, the nature of the specific work undertaken or the complexity of legal matters considered, or details of who carried out the work in the case of external solicitors (e.g. partner or junior solicitor). In addition, other factors are undoubtedly considered by clients in determining whether to employ the services of particular solicitors or barristers.
For the same reason, I do not accept that disclosure could negatively impact future procurement negotiations. The HSE’s arguments are based on a concern that the disclosure of the information at issue would essentially allow for the rates for which legal advice is provided by contracted solicitor firms to be known. I do not accept that this is a valid concern in circumstances where I am not persuaded that the release of the information would cause such rates to be known. In any event tenders are evaluated according to selection and award criteria and I note that the Most Economically Advantageous Tender criterion typically involves a consideration of a combination of price and quality.
In sum, given the nature of the information requested and the level of detail contained in the information at issue, I find that the HSE was not justified in refusing access to that information on the basis of section 36(1)(b).
Section 37(1)
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record would involve the disclosure of personal information (including personal information relating to a deceased individual). Section 2 of the FOI Act defines the term “personal information ” as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. Section 2 also details 14 specific categories of information which is personal without prejudice to the generality of the foregoing definition, including, but not limited to (ii) information relating to the financial affairs of the individual.
Certain information is excluded from the definition of personal information. Paragraph II of the definition provides that where the individual is or was a service provider, the definition does not include the name of the individual or information relating to the service or terms of the contract or anything written or recorded in any form by the individual in the course of and for the purpose of the provision of the service. However, the exclusions to the definition do not exclude all information relating to service providers. Individuals are still entitled to the right to privacy generally.
As noted above, the barrister who made a submission argued that section 37(1) also applies to exempt release of the requested information. In her submission, she said that the information requested is personal information and that she does not consent to its release and understood it to be confidential. She said that none of the exemptions contained in section 37(2) apply in this instance.
Section 2 of the FOI Act defines “service provider ” as including a person who was providing a service for an FOI body under a contract for services which includes an administrative arrangement between an FOI body and another person. The barrister in question acted as legal counsel for the HSE in respect of the litigation at issue. I accept that the primary relationship of barristers is generally with the solicitor who engages them and that they generally receive their instructions and relevant information from the solicitor and act on the client's behalf. Nevertheless, it seems to me that the service they provide can reasonably be described as being for both the solicitor and the client. I note that the Code of Conduct for the Bar of Ireland, published by the Bar of Ireland, defines a client as including “a person on whose behalf a Barrister has been instructed by a solicitor ”. Notwithstanding the fact that barristers are instructed by solicitors, I am satisfied that in this case, the barrister was providing legal services to the HSE as a client.
Accordingly, I am satisfied that the third party was a service provider for the purposes of the definition of personal information and section 37 of the Act. The question then is whether the information at issue falls within the exclusion to the definition of personal information more broadly. I am satisfied that the fee paid by the FOI body to a service provider constitutes “information relating to the service or the terms of the contract”. As such, I find that the information is not personal information for the purposes of section 37 and that the exemption provision does not therefore apply. In the circumstances, I am not required to consider the public interest test at section 37(5).
In light of the above findings, I direct the release of the relevant legal cost breakdown as provided to this Office on 11 June 2025.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE’s decision. I find that it was not justified in refusing access to the breakdown of legal costs incurred in respect of a specified set of proceedings on the basis of sections 36(1)(b) or 37(1) and I direct the release of the information at issue.
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 not later than four weeks after notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator