Decision
Martina Fitzgerald, RTÉ, Donnybrook, Dublin 4 and the Department of Justice and Equality
From Office of the Information Commissioner (OIC)
Case number: 130165
Published on
From Office of the Information Commissioner (OIC)
Case number: 130165
Published on
Whether the Department was justified in deciding to refuse access to records relating to inspection reports and other information concerning residents of accommodation centres managed by the Reception and Integration Agency (RIA) on the grounds that they are exempt from release under various sections (including sections 26 and 28) of the FOI Act
Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
23 December 2014
The applicant made an FOI request to the Department on 17 December 2012 for access to records of inspection reports for eight named Asylum Centres and detailed information relating to the direct provision of support for those seeking asylum in Ireland for the period 2011 to 2012. The Department partially granted the request on 15 April 2013 and refused access to records on the basis of sections 26(1)(a) and 28(1) of the Act. On 8 May 2013, the applicant clarified some of the elements of her request and sought an internal review of the decision to refuse access to records containing the following:
The applicant stressed that she did not require identifying information about residents. In its internal review decision of 4 June 2013, the Department upheld the original decision and in addition relied on section 10(1)(a) and 10(1)(c) to refuse access to the records. It said that there were 262 records within the scope of the request to which access had been granted in full to 138, in part to 43 with 81 having been withheld. On 1 July 2013, the applicant wrote to this Office seeking a review of the Department's decision.
This Office sought further information from the Department on 17 July 2013, 17 June 2014, 12 August 2014, 23 September 2013, 3 November 2014 and also sought the views of the contractors of eight named Asylum Centres who might be affected by release of certain records. The Department made several detailed submissions and some of the contractors also responded with their views. Ms Alison McCulloch, Investigator in this Office paid a visit to the RIA on 14 November 2014 and viewed some of the withheld records on a database held there. I consider that the review should now be finalised by way of a formal, binding decision.
In reviewing this case I have had regard to the following:
In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.
This review is concerned solely with the question of whether the Department was justified in refusing access to the withheld records on the basis of various sections of the FOI Act. The applicant agreed in the course of the review that she did not require the names of staff employed by contractors in the centres or the withheld information in the register of residents and this decision does not consider whether that information should be released where it appears in any of the records.
The applicant, as part of her original request in December 2012 sought records "outlining the general nature" of the assaults, injuries, cases of neglect, sexual concerns and other incidents as outlined in the RIA's annual report involving residents in asylum centres. It would appear from its original decision and its internal review decision that it was not entirely clear to the Department what records were being sought. It also appears that the Department did not consult with the applicant to establish the scope of the request and to clarify the nature of the records it held which came within the scope of the request. The applicant specifically requested access to the general information gathered for the annual report in her internal review request. It is evident that a large part of what she required was the "general information" held by the Department which formed the basis for the figures in the tables published in the RIA annual reports. At a late stage in this review it came to light that the RIA maintained a database which contained some of the information covered by the applicant's request. It would appear that this database was used to produce the statistics for the annual report yet it seems that it was not examined by the Department until the Investigator pursued the question of whether records existed from which the annual report data was collated. The applicant specifically asked for this type of information and, in my view, relevant records could have been retrieved from this database in the form of a report or otherwise and considered for release where the FOI Act provided for this. Furthermore, it seems that no consideration was given by the Department to the provision of redacted records, where appropriate, as provided for in section 13 of the FOI Act. It is most unsatisfactory that the database records should have been brought to the attention of the Investigator at such a late stage when, clearly, they should have been considered in 2012.
By way of background, I should add that the Department's position in relation to the categorisation of incidents involving residents as published in the RIA's annual reports was set out in submissions to this Office. This categorisation ceased in 2013 since the RIA considered that the previously published tables were misleading and that any such categorisation of incidents involving children was a matter for the Children and Family Agency (Tusla). This review is concerned with some of the material "behind" the tables and the fact that the RIA considers that some of the published information is misleading is not of relevance to whether the applicant is entitled to have access to the records under FOI.
Section 32
The applicant requested access to Inspection Reports for eight named centres for asylum seekers for the period 2011 and 2012. The Department originally cited section 26(1)(a) in deciding that these records were exempt. However, in submissions to this Office, it argued that section 27(1) and section 32(1) also applied. The Department's position is that it was obliged by section 32(1) to withhold Environmental Health Officers (EHO) inspection letters sent to the centre managers following an inspection by the HSE's Environmental Health inspection team. The Department stated that the letters were not sent by the EHO's to the RIA but were provided to it by the independent contractors to whom they were addressed. It said that the RIA told the contractors that such records would be held confidentially.
Before addressing the confidentiality argument under section 26 and the commercial sensitivity claims under section 27, I will consider whether section 32(1) applies. This section provides for the withholding of records where-
(a) the disclosure of the record concerned is prohibited by any enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule).
Therefore, section 32 provides that any " non-disclosure" provision in legislation prevents release of a record under the FOI Act unless such a provision is listed in column (3) of the Third Schedule of that Act. The Department states that release of the inspection letters would be in violation of Section 43 of the Food Safety Authority Ireland (FSAI) Act 1998 which provides, inter alia, for the non-disclosure of information obtained by staff in the performance of their duties. However, I note that this section of the Act was inserted in column 3 of the Third Schedule by Schedule 2 to the Health Act 2007 as an enactment excluded from the application of section 32 and is therefore listed in that Schedule. The result, therefore, is that the EHO inspection letters cannot be exempt on the basis of section 32(1) of the FOI Act and I find accordingly.
The Department also referenced the European Communities (Official Control of Foodstuffs) Regulations, 2010 (S.I. No 117 of 2010) in its submissions in relation to the prohibition on release which it claims. It said that competent authorities were required to ensure that their staff do not disclose information acquired in carrying out official control duties covered by professional secrecy. Ms McCulloch contacted the HSE for its views and its Environmental Health section confirmed that the HSE considered itself restricted in respect of information obtained by its staff on foot of its statutory powers to carry out food safety inspections but did not believe that such prohibitions applied in respect of such reports held by other agencies such as the RIA or the Department. It is not necessary for me to examine whether the regulations are "enactments" within the meaning of section 32 as I do not consider that the provisions at issue which concern staff carrying out statutory inspections prohibit the disclosure of the records held in this instance. I find that section 32(1) of the Act is not engaged in the circumstances of this case by reference to the regulations cited.
Section 26
Section 26(1) is concerned with protecting information given in confidence to public bodies. The Department's decisions made reference to section 26(1)(a); it also cited section 26(1)(b) in its submissions claiming exemption in respect of the EHO inspection letters. Section 26(1)(a) of the FOI Act provides for the mandatory refusal of a record containing information:
Section 26(1)(b), also a mandatory exemption, applies where 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.
It is important to note that section 26(2) provides that section 26(1) shall not apply to a record prepared by a member of staff of a public body or a person who is providing a service for a public body under a contract for services unless:
"disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body,...or member of staff of a public body or a person who is providing or provided a service for a public body under a contract for services." (my emphasis)
The records at issue in this case were prepared by staff members (EHO's) of the HSE - a public body in the course of carrying out its statutory functions. It is not disputed that the companies who manage the centres do so under a contact for services to a public body. Accordingly, for section 26(1) to apply, the release of the records must constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than the HSE or its staff or contractors. Both the Department and the affected third parties (contractors who manage the centres) have claimed that section 26(1)(a) applies in this case. The reports consist of the authors' own observations and recommendations made during the course of their visits to the centres. While some submissions appear to place a lot of emphasis on the fact that the inspection letters were not obtained directly by the RIA from the HSE but were forwarded to it by the private companies involved, this is not relevant given that the records are now held by the Department. Having examined the contents of the records and the submissions on the matter, I have been unable to identify any person or entity (apart from the HSE staff or the owner/manager of each accommodation centre) that the Department could possibly owe a duty of confidence to in this instance. It therefore follows that section 26(2) must apply. Accordingly, I find that section 26(1)(a) and 26(1)(b) do not apply.
Given my finding that section 26(1) does not apply, it is not necessary to discuss the public interest under section 26(3) on which the parties also made submissions.
Section 27
In its original decision and internal review, the Department made no mention of section 27. In submission on this review, it referred to section 27(1)(a) and (b) and claimed that exemptions covering commercially sensitive information applied to the records.
Section 27(1)(a)
Section 27(1)(a) of the FOI Act protects the trade secrets of the person concerned. The Commissioner considered the test of what constitutes a trade secret in previous decisions and quoted Gowans J. in Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967 v.r.373], as follows:
"An exact definition of a trade secret is not possible. Some factors to be considered in determining whether given information is one's trade secret are: (1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his contemporaries; (5) the amount of effort or money expended by him in developing the information; (6) the ease of difficulty with which the information could be properly acquired or duplicated by others".
The Department in its submission of 7 July 2014 referred to this test and concluded that the information contained in the inspection letters amounted to a "trade secret". However, in its analysis it omitted the test at number 3 and 5 above. The letters notify the contractors of infringements of compliance with food and hygiene/food safety legislation of the operational and structural hygiene in the catering and sanitary accommodation facilities in the asylum centres. It seems to me that the information contained in the records is not so much information about the business of the contractors but the views and recommendations of the EHO's concerning standard type arrangements for food hygiene and related maters of the type one would expect to find in any commercial catering operation. It is clear from the tests set out above that this section protects secrecy of a product or operation or some form of information which is strictly guarded by the company. Having regard to the requirements of section 34(12) and the content of the records, I am not satisfied that the information in any of the records constitutes a 'trade secret' and I find that section 27(1)(a) does not apply.
Section 27(1)(b) and section 27(1)(c)
The Department also cited section 27(1)(b) of the FOI Act which provides:
"..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"
The Department made no specific references to section 27(1)(c) which protects information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. However, some of the submissions received from the contractors did refer to the affect that disclosure might have on future contracts. Insofar as this might constitute a claim that section 27(1)(c) applied, I have considered the matter. In relation to this exemption, I would expect that a person seeking to rely on section 27(1)(c) would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure. I would also expect some explanation as to how exactly disclosure of particular information could prejudice the conduct or outcome of any negotiations. No such detailed argument has been made. Accordingly, I do not find that section 27(1)(c) applies.
The Department claimed that release of the inspection letters could reasonably be expected to have negative commercial consequences for the private contractors involved and/or could prejudice their competitive position in conducting their business. This Office sought the views of the private contractors and all who responded objected to the release of the inspection letters on the basis of commercial sensitivity. Among the arguments put forward were the possibility that their business would be criticised in an unfair way which would affect the renewal of contracts, the possibility of "unjustified scrutiny", adverse affect on the business relationship with the RIA, the need to protect reputations and income of the company and employees, concern about a threat to revenues and a weakening of their position in a competitive environment. One contractor argued that release of the report would seriously affect its ability to tender for other food related competitions. Another contractor stated that "it is highly probable that disclosure of this information to the world at large will come to the attention of an individual or organisation with whom [it] has previously, currently or will prospectively engage. Those persons could include staff, clients, end consumers and suppliers as well as [its] competitors and business partners looking to gain bargaining leverage or a competitive edge." It also argued that its "business predominantly consists of frontline service of food to the public....... any negative track record [is] potentially disastrous in tendering for new or repeat business." Another contractor argued that "while some of the correspondence points out some matters that require attention, none of these matters mean that our catering operation is not fully compliant and fit for purpose. In the wrong hands however and if taken out of context, some of these relatively minor 'matters requiring attention' in the Environmental Health Officers correspondence could be published and could have a hugely damaging effect on our very existence as a business".
The 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 main thrust of the arguments put forward by the Department and the contractors relate to concerns that the release of any criticism, whether well-founded or otherwise, would adversely affect the companies' financial and competitive positions and reputations. For the exemption to apply, the only requirement that has to be met is that disclosure could prejudice the competitive position of the person concerned. The standard of proof necessary to meet this test is relatively low. Having carefully considered the arguments advanced, I am prepared to accept that the release of these records could have negative commercial consequences for the contractors and/or could prejudice their competitive position. I find, therefore, that section 27(1)(b) applies. I will now turn to consider the question of the public interest in the release of the information I find to be commercially sensitive.
Section 27(3)
Section 27(3) of the FOI Act provides that the exemptions contained in section 27(1) are not to 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 .....".
The inspection letters in question were sent to the proprietor of the centres, which are managed under contract to the RIA. The letters outline to the proprietors the outcome of the inspection and any infringements of food and hygiene/food safety legislation found. The letters also provides advice on best practice in operational and structural hygiene in catering and sanitary accommodation. Letters were then sent to the proprietors of the centre and , if necessary, on subsequent inspections it was ascertained whether or not the EHO's recommendations had been implemented. The Department stated that the EHO inspection letters were requested by the RIA officials in the course of their inspections to enable them to identify areas which may have required special concentration. It contends that, were these records to be released, the proprietors would refuse to provide the letters to the RIA officials. It is my understanding that the contracts for managing the asylum centres are renewed on an annual basis and I can see no reason why the RIA could not make the provision of these documents a requirement in any tender process. Substantial public monies are paid out to these proprietors and I do not accept that the release of the inspection letters would affect the ability of the RIA to engage managers or suppliers for the centres. I consider that the EHO inspection letters are similar to nursing home inspection reports which the former Commissioner has dealt with in some detail in her published decision in Case No. 020533 - (Mr. X and the South Eastern Health Board) at www.oic.ie. and in other similar cases.
In her decision on case 020533, the former Commissioner commented as follows:
"I consider that there is a significant public interest in information about private nursing homes being available to the public. There are two particular reasons for taking this view.
The first is that the Exchequer, via the health boards, pays out substantial sums to such homes in the form of subventions to patients resident in nursing homes. Ensuring accountability in respect of this funding constitutes a very significant public interest.
The second reason is that the public has a very strong interest in knowing that such homes operate within the standards prescribed by law - in the Health (Nursing Homes) Act, 1990 along with related regulations - and which health boards, on behalf of the public, are required to enforce.
In my view, there is a significant public interest in the public knowing how health boards carry out nursing home inspections in individual cases and that the regulatory functions assigned to the boards achieve the purpose of the relevant legislation. Indeed, I take the view that in the normal course reports of health board inspections of private nursing homes should be available as a matter of routine, subject only to the deletion of personal information and, occasionally, the protection of confidentiality in relation to third parties.
There is an overriding public interest in ensuring that the health, security and welfare of elderly and vulnerable members of society is seen to be protected by the enforcement by health boards of the relevant legislation ...."
For the purposes of this review, I am happy to adopt the reasoning of the Commissioner as set out in Case No. 020533. Although I appreciate that there are differences between the running of a nursing home and of a centre for asylum seekers, the fact remains that the private contractors are engaged by and paid by the State in order to manage a service for residents. I consider that there is a substantial public interest in information about the centres being made available to the public due to the substantial public monies paid out to the proprietors of these centres. The public has a very strong interest in knowing that such centres operate within the standards prescribed by law - in food and hygiene/food safety legislation- and which the EHOs, on behalf of the public, are required to enforce. As regards the argument that the EHO letters would be misreported or misinterpreted in any media coverage, the Commissioner has indicated in previous decisions that the possibility that information, once released, will be used in some particular way or misinterpreted or will not be properly understood is, generally speaking, not a good cause for refusing access to the information. Furthermore, it seems to me that the parties involved would be capable of presenting the information to the public in a way which will allow any objective observer to draw accurate and balanced conclusions. I appreciate that there is a public interest in supporting an environment conducive to the conduct of business, including the operation of centres for asylum seekers. However, in terms of balancing the competing public interests at issue here, I find that the advantages in terms of openness and accountability of disclosing the information in the records in question (subject to the deletion of some references which constitute personal information) outweigh any possible harm to the proprietors and that the public interest is better served by the release of these records. I note here that the applicant has stated that she does not require the names of staff employed in the centres where these are mentioned in any reports.
Accordingly, I find that section 27 does not apply in relation to the inspection letters from the EHO section of the HSE.
Section 28
Section 28(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. The FOI Act at section 2 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.
Ms McCulloch viewed the withheld records on a visit to the office of the RIA on 14 November 2014. The records are held on a database, which appeared to be a Lotus Notes database, with data categorised in groups similar to those detailed in the table in the RIA annual report. The data on the incident records comprise personal details - name, age etc. and details of the incident and case type. The details recorded of the incidents appeared to be general in nature. Having examined the data contained in the database it is clear that the personal information recorded is of the type defined under section 28(1) as personal information and is exempt from release. The remaining information of general details of incidents and case type viewed on their own without the identifying information cannot be described as personal information. From the information given to the Investigator during her visit and in subsequent contacts with the Department, I consider that it will be possible for the Department to interrogate the database in order to produce the records requested by the applicant without disclosing any personal information of the individuals concerned. In any event, the forms recorded on the database could be printed and the personal information redacted for release. Therefore, I find that the personal information identifying any individual - name, age, etc. of individuals - recorded on the database or in any other records is exempt on the basis of section 28(1) of the FOI Act and that any remaining information captured on the database which is within the scope of the FOI request should be released.
Section 28(2) provides for the release of a record to which section 28(1) applies in a number of circumstances. These are where the record relates to the applicant; where the third party consents to the release of the records to the applicant; where the information is of a kind that is available to the general public; where the third party was informed prior to the information being given that it belonged to a class of information that would or might be made available to the general public; or, finally, where disclosure of the information is necessary to avoid a serious and imminent danger to the life or health of an individual. I am satisfied that none of the circumstances identified at section 28(2) arises in this case.
Section 28(5)
Subsection (5) of section 28 provides that the exemption does not apply where (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual aforesaid. In the case of section 28(5)(b), this may be disposed of summarily. There is no obvious case, nor has such a case been made, that the release of relevant records to the applicant would be to the benefit of any other persons whose personal information is found in the records. I find therefore that section 28(5)(b) does not apply in this case.
However, although it appears that the applicant does not require identifying personal information of the residents, for the sake of completeness, I will consider the public interest test, contained in section 28(5)(a).
The judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] 1 IR. 729, [2011] IESC 26 (the Rotunda judgment) outlined the approach the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") must be distinguished from a private interest for the purpose of section 28(5)(a). The language of section 28 and of the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Accordingly, when considering section 28(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. In the circumstances of this case, I am not satisfied that the public interest in granting the request in this case outweighs, on balance, the public interest in upholding the right to privacy of the third party, and I find that section 28(5)(a) does not apply. Thus, the personal information of individuals must be redacted from any records released in accordance with my finding above.
Section 10(1)(a)
The Department relied on section 10(1)(a) to refuse access to the number and general issues concerning cases of what the applicant termed underage sex/underage births at the centres. This section provides that:
"A head to whom a request under section 7 is made may refuse to grant the request if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken"
The Department stated that it does not hold records in relation to any sexual activity of teenagers. It contends that "RIA does not collect statistics on underage births. Where such an underage birth would give rise to any child welfare concerns, it is the responsibility of the Child and Family Agency (Tusla) to act on those concerns".
The position of the Department is that the records requested by the applicant do not exist. Having considered the matter, I consider that it is reasonable to accept the Department's explanation. I find that the Department is justified in refusing access to the records sought on the basis of section 10(1)(a) of the FOI Act.
Section 10(1)(c)
The Department relied on section 10(1)(c) of the FOI Act to refuse access to this part of the request. Section 10(1)(c) provides that a request for a record may be refused if granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of work of the public body concerned. The Department's argument is that the RIA does not keep records or statistics on criminal offences and that reports of alleged incidents of this type are associated with the individual's RIA file. It said that retrieval of such information would require the examination of the records related to over 50,000 individuals in order to ascertain (i) that they were in RIA accommodation between 2009 and 2012 and (ii) whether they were involved in an alleged incident that could be categorised as an "assault" or a "rape". The Department contends that the work involved in processing this element of the request would place a huge administrative burden on the RIA and would mean that staff would have to work solely on the request for a prolonged period of time and would be unable to fulfil other statutory duties.
Where a public body wishes to refuse a request under section 10(1)(c) it must consider the applicability of section 10(2) before doing so. Section 10(2) provides that a public body shall not refuse a request under section 10(1)(c) unless it has assisted, or offered to assist, the requester concerned in an endeavour so to amend the request so that it no longer falls within the parameters of section 10(1)(c). There is no reference in the decision making records furnished, of any attempt made by the Department to assist the applicant to amend the request so that it would no longer fall to be refused under section 10(1)(c). The Department's FOI Liaison Officer has confirmed to this Office that no such attempt was made and the applicant has agreed to the annulment of this element of the request to enable engagement with the Department on the matter. I stress that the records potentially covered by this part of the request have not been provided to or examined by this Office.
Having regard to the above, it is my view that the decision of the Department on this aspect of the request should be annulled and I find accordingly. The effect of this is that the Department is required to make a new, first instance decision in accordance with section 8 of the Act in respect of this element of the applicant's original request.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby vary the decision of the Department by:
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. Any such 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.
Elizabeth Dolan
Senior Investigator