Decision
Ms L and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: 130169
Published on
From Office of the Information Commissioner (OIC)
Case number: 130169
Published on
Whether the HSE was justified in its decision to grant a request, to which section 29 of the FOI Act applies, for access to an internal audit report containing information relating to the applicant.
17th June, 2014
This review arises from a decision made by the HSE on 27 June 2013 to release records following a request to which section 29 of the FOI Act applies. Section 29 of the FOI Act applies to FOI requests where the public body has decided that the record(s) in question qualify for exemptions under one or more of the relevant exemptions in the FOI Act (i.e. sections 26, 27 and 28 - relating to information that is obtained in confidence, commercially sensitive or is personal to the third parties, respectively) but that the record(s) should be released in the public interest.
Where section 29 applies, the public body is required to notify an affected third party before making a final decision on whether or not the exemption(s), found otherwise to apply, should be overridden in the public interest. The requester or an affected third party, on receiving notice of the final decision of the public body, if they so wish, may apply for a review of that decision to this Office directly.
On dates in May and June of 2013, the HSE received four separate requests under the FOI Act for the release of audit reports. The HSE's decision maker formed the opinion that section 27 of the FOI Act applied to one of the records coming within the scope of the request, as its release could potentially affect the commercial interests of third parties, including the applicant. He concluded that the request was one to which section 29 of the FOI Act applied and undertook a process of formal consultation with the third parties involved. Accordingly, on 4 June 2013, he wrote to the applicant enclosing extracts from the record that he deemed to be relevant, setting out his preliminary view in relation to the matter and soliciting the applicant's submissions.
The applicant responded by way of letter dated 20 June 2013, setting out a number of specific complaints regarding the content of the record in question and submitting that the record, "contains severe errors of fact, draws unfounded inferences and conclusions." She submitted that release of the record is not in the public interest, submitting that the purported deficiencies in its content will have the effect that, "[r]ather than inform the public, [the record] will mislead the public."
The HSE's decision issued on 27 June 2013 in relation to the FOI requests it had received. The decision maker applied the public interest test contained at section 27(3) in favour of the release of the record, having regard to the "general accountability of administrators and the scrutiny of the decision making process". Therefore, the decision maker directed the release of the record in question. The applicant lodged an application for review with this Office on 4 July 2013.
I note that Mr. Niall Mulligan of this Office conveyed his preliminary views to the applicant by way of letter dated 6 May 2014. The applicant responded by way of email dated 30 May 2014, making it clear that she did not accept Mr. Mulligan's conclusions and setting out further submissions.
I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to the applicant's submissions to this Office and to correspondence between the applicant and the HSE. I have also had regard to the content of the HSE internal audit report at issue and to the provisions of the FOI Act.
The applicant has raised concerns as to the substance of the record and regarding the HSE's procedures relating to the preparation of the record. These matters are beyond the scope of this review. The role of this Office is to assess the decision in light of the provisions of the FOI Act, and in particular the exemptions which the applicant claims should apply.
The record which is the subject of this review is an audit report, prepared by the HSE. The scope of this review is confined to assessing whether the HSE was justified in its decision to release that internal audit report. Specifically, I must consider whether the record is exempt from release pursuant to section 27(1)(b) the FOI Act as commercially sensitive information, and, if so, whether the public interest would be better served by release or non-release of that information.
Section 34(12)(a) of the FOI Act provides that a decision to grant a request to which section 29 of the Act applies is presumed to have been justified unless the person appealing that decision shows to the satisfaction of the Commissioner that it was not justified. While the HSE concluded that the internal audit report contained commercially sensitive information concerning the applicant, it decided to release the record in the public interest, in accordance with the provisions of section 29 of the FOI Act.
In the course of this review, the applicant made submissions under sections 20 and 27 of the FOI Act. Section 29 refers exclusively to exemptions under sections 26, 27 and 28. Section 20 is a discretionary exemption which the public body may apply if it considers that the information at issue relates to the deliberative process of a public body and that the public interest in refusing the request outweighs, on balance, the public interest served by granting the request. In this case, the HSE has not sought to apply the section 20 exemption. Therefore, it is not necessary to consider the submissions made by the applicant under section 20.
Section 27(1) provides:-
"Subject to subsection (2), a head shall refuse to grant a request under section 7 if the record concerned contains...
(b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or
(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates..."
In relation to section 27(1)(b), the applicant's primary concern is an apprehension of general reputational damage. The applicant submits that the release of the record "jeopardise and prejudice [her] competitive position" in her profession. In Henry Ford & Sons Ltd, Nissan Ireland and Motor Distributors Ltd and The Office of Public Works (Cases 98049, 98056, 98057), the Commissioner held that:-
"[T]he essence of the test in section 27(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The subsection protects information whose disclosure might reasonably be expected to result in a material financial loss or gain to the person to whom the information relates or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation."
In the case of Electricity Supply Board and Department of Public Enterprise (Case 98197, available from
The former Commissioner also considered the application of section 27(1)(c) in Case 98197, stating that he "would expect that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure [and that he] would also expect such a person to be able to explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations." The applicant cites a particular commercial interactions which she contends may be prejudiced by the release of the record. Again, on balance, I am satisfied that the applicant has demonstrated a possible prejudice to contractual or other negotiations, within the meaning of section 27(1)(c) of the FOI Act.
Section 27(2) goes on to set out five specific sets of circumstances in which section 27(1) will not apply, none of which appear to me to be relevant to the applicant's case. Section 27(3) provides that the exemption contained at 27(1) will be subject to a public interest test, in the following terms:-
"Subject to section 29, subsection (1) does not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned."
The decision maker, in his preliminary view letter, set out various factors informing his application of a public interest test. In his decision, he found in favour of the release of the record in question, citing "the general accountability of administrators and scrutiny of the decision making process".
The application of the public interest test requires that the decision maker consider the general principle, set out in the long title to the FOI Act that the Act is intended to "enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies", but also to consider "on balance" the other rights that may be affected by the release of the record in question (see Sheedy v. Information Commissioner [2005] 2 ILRM 374 per Fennelly J and South Western Area Health Board v. The Information Commissioner [2005] 2 ILRM 374).
This Office has considered the public interest in relation to health services in cases including Mr. X and the South Eastern Health Board (Case 020533), Dr X and the Midland Health Board (Case 030759), Mr. AA and the HSE (Case 060320) and Ms X and the HSE (Case 090130). As the former Commissioner stated in Case 030759:-
"The performance of our health service, and particularly of the public health service, is of fundamental importance. In principle, providing as much information as possible to the public about that service, and about how the various interests within the service interact, must be regarded as being in the public interest... In my view, there is a very strong public interest served in ensuring the greatest level of transparency possible in regard to the operation of the health service including the manner in which the various sectors within the health service interact. I take the view that such transparency serves the public interest both in relation to the health service which is in the private sphere as well as to the publicly funded health service. In the former case, transparency supports the public interest in ensuring that the private health sector operates in a manner which is competitive, professional and efficient. In the latter case, transparency supports the public interest in ensuring that the public health sector operates in a manner which is professional, fair and gives value for money. In relation to public sector activity, the notions of transparency and accountability are always closely linked."
On the other hand, there is a public interest in members of the public and the business community being able to communicate in confidence with public bodies in relation to sensitive commercial matters without fear of disclosure, and also a public interest in supporting an environment conducive to the conduct of business.
While the applicant has raised a number of issues regarding the substantive content of the record, in my opinion these matters are of very limited relevance to this application. In the recent decision in the case of Mr. P and the HSE (Case 090261), the Commissioner stated that:-
"[H]aving regard to the Rotunda Hospital case ([2011] IESC 26), section 8(4) of the FOI Act, and the limits of my remit, I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances...
... I wish to emphasise that the public interest test does not give me the authority to investigate complaints against public bodies or to act as an alternative dispute mechanism with respect to actions taken by public bodies....
Thus, while I accept that there is a strong public interest in openness and accountability in relation to the manner in which public bodies carry out their functions... this does not mean that it is within my remit as Information Commissioner to determine or to make value judgments as to whether the applicant should have been provided with further personal information in the course of the assessment process or the investigation, whether as a matter of fair procedures, "equality of arms", or simply good administrative practice. It also does not permit me to review the question of whether the outcome of the investigation was correct or not."
The applicant argued that her submissions in this review were not centred on the question of whether the outcome of the investigation was correct or not, but rather on the "prejudicial and disproportionate effect of inaccurate information." As set out above, is not the role of this Office, in an application such as this, to reach a determination in relation to the contents of a record or the procedures surrounding its creation. The applicant's argument, as it appears to me, is premised upon the contention that the report contains false or inaccurate information. The FOI Act does not confer any powers upon this office to enquire into such matters in the context of an application for the release of records, nor does it seem to me that this appeal is an appropriate forum in which to raise such arguments.
Regarding the question of whether the release of the report will disproportionately affect the commercial interests of the applicant, I am satisfied that it is legitimate for me to have regard to the fact that her comments in relation to its contents have been reproduced in full in an appendix to the report. The applicant submits that this did not provide her with an adequate right of reply, as it comes at the end of the report, and is interspersed with comments by the report's author. Furthermore, the report contains disclaimers, stating that it refers to "internal HSE operations only" and specifically purporting to exclude any inferences in respect of "any external party". The applicant submits that this does not operate to modify the effect of the report's findings, as she is not an "external party" for these purposes.
While the applicant has strongly expressed her dissatisfaction at the manner in which her objections came to be presented, it appears to me that their very presence will necessarily ameliorate any purportedly disproportionate effect that the release of the record may have on her interests. Furthermore, in Gavin Sheridan and the Industrial Development Agency (Case 110092), this Office clearly stated that "any possibility that the general public may either misunderstand or draw particular inferences from media articles that might result from the release of records under FOI (or even the possibility that such articles may be inaccurate) are, of themselves, not appropriate reasons ... to determine that any record should be withheld."
In reaching my decision, I have had regard to the provisions of the FOI Act and the guidance provided by previous judgments of the Courts and decisions of the Commissioner, including those set out above, and have carefully considered the case made by the applicant in her submissions. I am satisfied, on balance, that the applicant has not demonstrated that the public interest would be better served by a refusal to release the record in question than by its release.
For the foregoing reasons, I am of the view that the applicant has not demonstrated, in line with section 34(12)(a) of the Act, that the decision by the HSE to release the record is not justified and, therefore, that its decision to release the record in this case was justified. I find accordingly.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the HSE to release the internal audit report that is the subject of this review.
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