Decision
Mr. Y and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-152090-V6F9K0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-152090-V6F9K0
Published on
Whether the HSE was justified in refusing access, under sections 30(1)(a), 30(1)(b), 35(1), or 37(1) of the FOI Act, to statements made in connection with a complaint submitted by the applicant
30 May 2025
In a request dated 17 May 2024, the applicant sought access to statements made concerning a complaint he made against a colleague and that were provided prior to a subsequent investigation carried out under the HSE’s Dignity at Work procedure. That procedure is a formal, Human Resources process designed to examine incidents of bullying and harassment in the workplace. In a decision dated 9 July 2024, the HSE refused the request under section 35(1) of the FOI Act. It said the statements were not utilised by the Investigation Team and were therefore not issued to him as part of the investigation. On 16 July 2024, the applicant sought an internal review of the HSE’s decision.
On 17 September 2024, the HSE issued an internal review decision which affirmed the original decision to refuse access to the records sought under section 35(1)(a). Section 30(1)(a) was also cited as a further ground for exemption. On 17 September 2024, the applicant applied to this Office for a review of the HSE’s decision.
During course of the review, the HSE argued that the records sought were also exempt under sections 30(1)(b) and 37(1)(a) of the Act. The applicant was put on notice of these new material issues and was invited to provide a submission in response. The applicant’s submission was received on 19 May 2025.
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 submissions made by the HSE and the applicant during the review. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the HSE was justified in refusing access, under sections 30(1)(a), 30(1)(b), 35(1), and/or 37(1) of the FOI Act, to the statements sought.
Having regard to the contents of the records, it seems to me that section 30(1)(a) of the FOI Act is the most appropriate exemption to consider first.
Section 30(1)(a) – Prejudice the Effectiveness of Tests, Examinations, Investigations, etc
Section 30(1)(a) provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries, or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof.
Where an FOI body relies on section 30(1)(a), it should identify the potential harm in relation to the relevant function specified that might arise from disclosure. Having identified that harm, it should consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, the release of the record could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits and considering the contents of each record and the relevant facts and circumstances of the case. Section 30(1) is also subject to a public interest test under section 30(2).
In its submissions, the HSE said that the records at issue comprise statements written by HSE staff members that were collected by a manager following an alleged incident. It said the incident was later examined under a formal HR process, the HSE’s Dignity at Work process, when a more senior staff member received the complaint. It said all statements were collected prior to the formal investigation process and outside of the investigation itself. It said each individual staff member was contacted and confirmed that they did not want their statements released outside the concluded HR process in which not all of the staff members participated. It said the staff members did not understand that in providing the original statements, they would be subject to, or released under, the FOI process. It explained that the statements were not part of, or relied on, in the formal HR investigation but staff participated in the HR process. It said the investigation was completed and the full investigation report provided to the requester within the HR processes.
The HSE further explained that the Dignity at Work Policy is a HR policy which aims to provide a safe working environment for all employees working in the health services which recognises their right to be treated with dignity and respect. It said principles governing complaints management include confidentiality. It said the process relies heavily on employees participating in an open manner, that they must feel secure that their contributions are used solely for the intended purpose of resolving workplace issues, and that there is an expectation of a degree of confidentiality. It said the HSE Dignity at Work Policy and Procedure is a HSE internal process where information is collected specifically to address issues of harassment, bullying etc. It said employees must be assured that the information will be kept confidential within the process to encourage them to come forward and participate in the process.
The HSE added that it was not established why the manager did not submit the statements as part of the HR investigation in which staff participated. It said the HR investigator only became aware of the statements when they received a request to include them in the investigation. It said the HR investigator in the final report concluded that the statements in question had no impact on the Dignity at work investigation. It said the HR process is concluded and that to release the statements after staff participation in a formal process will cause harm to the process if now released under FOI. It said that as release under FOI is release to the world at large, the HSE will have no control over the use of the statements. It said it relies on staff members engaging in HR processes and that these individuals were afforded the parameters/protections of engagement in the Dignity at Work process. It said the release of the statements, which the staff have stated they do not want released under FOI, will remove the parameters/protections provided for under the HSE Dignity at Work process. It said this will discourage future participation in such processes and the HSE require staff engagement to continue in such processes. It said that if records are released under FOI, the HSE have no control over how the information is used and staff who participated in the formal HR process become disadvantaged as the parameters/protections of the HR process are impacted. It said this will also discourage employees from participating in HR processes. It said the effectiveness of the process will be harmed because the process depends on the participation of staff and the collection of information including by statements.
In his application for internal review, with respect to the HSE’s claim for exemption under section 35(1) of the FOI Act, the applicant disagreed that the statements at issue were provided on the understanding that they would be treated as confidential. He noted that the statements in question were gathered prior to the commencement of the formal Dignity at Work process and that there were no assurances of confidentiality provided at that stage.
In his submissions, the applicant said this case centres around the way in which the HSE conducted itself during the Dignity at Work process. He said the case was only heard following his referral of the HSE to the Workplace Relation Commission (WRC) for non-compliance of policies in the hearing of his complaint. He said his case was upheld by the WRC and that it imposed terms and conditions for both commencement and completion of the complaint hearing. He said the HSE did not uphold the conditions in a number of areas, namely two witnesses failed to attend and the HSE did not provide the statements at issue.
The applicant further said that;
“all other statements were provided to me by the investigator, of which all were signed and dated though one statement was withheld and they stated this was as a result of my FOI request, so why were all other statements provided less one, which is now the subject of my request to you ”.
Regarding the HSE’s claim for exemption under section 30(1)(b) of the FOI Act, the applicant also disagreed with the HSE’s assertion that the release of the records at issue would discourage employee participation. On the contrary, the applicant claims that local, HSE staff have reported that they are now less likely to make complaints, considering the outcome of the applicant’s complaint and the perceived lack of due process.
I wish to clarify at the outset that this Office has no role in examining the manner in which the HSE conducted the Dignity at Work process in respect of the applicant’s complaint or whether or not it acted contrary to any terms and conditions imposed by the WRC for conducting the investigation. It is also important to note that of the Act provides that, subject to the Act, in deciding whether to grant or refuse to grant an FOI request, any reason that the requester gives for the request, and any belief or opinion of the FOI body as to what are the reasons of the requester for the request, must be disregarded. Thus, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act. Our role in this case is confined to a consideration of whether the HSE was justified in refusing access to the statements at issue. On that point, while it appears that certain statements submitted as part of the formal investigation may have been provided to the applicant in accordance with the Dignity at Work process, it is also relevant to note that the particular statements that are the subject of this review were provided before the commencement of the formal Dignity at Work process.
Section 30(1)(a) envisages two potential types of "prejudice " or harm. It is concerned with protecting both the effectiveness of investigations etc. and the procedures or methods employed for the conduct of such investigations etc. The HSE’s position is that the release of the statements under FOI will discourage future participation in the Dignity at Work process as the HSE has no control over how the information is used and staff who participated in the formal HR process become disadvantaged as the parameters/protections of the HR process are impacted. On the other hand, the applicant argued that the statements in question were gathered prior to the commencement of the formal Dignity at Work process and that there were no assurances of confidentiality provided at that stage. It does not appear to be in dispute that the submission and receipt of the statements at issue did not form part of the formal Dignity at Work process.
I fully accept that an investigation under the HSE’s formalised Dignity at Work procedure is an investigation/examination for the purposes of section 30(1)(a). However, the fact that the submission and receipt of the statements at issue did not form part of the formal Dignity at Work process in this case does not mean that section 30(1)(a) cannot apply. It seems to me that the statements were gathered by a HSE manager in an effort to address a complaint made and that such action can reasonably be regarded as comprising both part of an examination, investigation, or inquiry as outlined in section 30(1)(a) and a procedure or method employed for the conduct of such an examination, investigation or inquiry. Indeed, I expect that it will often be the case that a public body will seek to resolve a complaint through informal means without the need for escalation of the matter to a more formal process. The informal nature of such a process does not mean that section 30(1)(a) cannot apply.
In the particular circumstances of this case, I accept the HSE’s submission that the staff members provided statements on the understanding that they would be used solely for the purpose of the investigation of the matter at issue. The fact that the staff members confirmed that they did not want their statements released outside the concluded HR process supports that submission supports this, in my view. I do not share the applicant’s view that the fact that no specific undertaking of confidence was provided when the statements were gathered invalidates the HSE’s arguments.
I also accept that the release of such statements outside of the HR process, could reasonably be expected to reduce the future willingness of staff members to fully engage and openly share their experiences and perspectives. Indeed, it seems to me that some staff might refuse to engage at all in what is a voluntary process. I also accept the HSE’s argument that it relies on staff cooperation to examine alleged workplace incidents and that its ability to effectively such issues would be harmed without such cooperation. I also accept that gathering statements at the time of an alleged workplace incident is an appropriate method or procedure for conducting an investigation, whether informal or otherwise and that the release of the statements in this case could reasonably be expected to prejudice the HSE’s ability to avail of such a procedure in the future.
The applicant has argued that the employee handbook and terms of employment of HSE staff members require staff to participate in all reviews and investigations when called upon to do so and to provide statements when necessary. Even if that is the case, it does not, in my view, ensure that such participation will be full, frank, and candid, in circumstances where staff members have concerns about the wider release of statements outside of the HR processes.
In summary, therefore, I am satisfied that the release of the records at issue could reasonably be expected to prejudice the effectiveness of investigations conducted by or on behalf of the HSE and/or the procedures or methods employed for the conduct thereof. Accordingly, I find that that section 30(1)(a) applies to the records concerned.
Section 30(2) provides that section 30(1)(a) does not apply where the FOI body considers that the public interest would, on balance, be better served by granting rather than by refusing the FOI request concerned.
In his application for internal review, the applicant argued that the refusal to release the statements in question undermines the integrity and transparency of the Dignity at Work process. In his submission, he argued that the HSE has an obligation to up-hold policies and procedures and to up-hold their application, something which he said did not occur in his case. He said that as a public service provider, the HSE has an obligation towards transparency in all facets of delivery of service, both to the public they serve and their employees who aid in that provision of service. He said the HSE has an absolute duty to the public, and that with-holding the records is not in the interest of fair procedure.
In its submission, the HSE acknowledged that transparency and openness are public interest factors which favour release. However, it said that the public interest in openness and transparency are met as the applicant received a formal report of the Dignity at Work investigation in which most of the individuals who wrote the statements participated. By contrast, the HSE said that staff confidence in HR processes and protecting the privacy and confidentiality of participants in the complaints process were public interest factors favouring non-disclosure of the records.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case ”). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure ”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
I fully accept that there is a strong public interest in ensuring that public bodies adhere to the principles of fair procedure and natural justice in their investigation of complaints made by their staff. There is also a strong public interest in ensuring openness, transparency and accountability in how they carry out such investigations. In this case, the complaint went through the formal Dignity at Work Process following which he was provided with the full investigation report. The Dignity at Work process itself, and the provision of the report to the applicant serves, to a significant extent, those public interests. On the other hand, the HSE has made it clear that the statements at issue in this case formed no part of the Dignity at Work Process. As such, it is not apparent to me that their release would serve to enhance the relevant public interest factors outlined.
As I have outlined above, section 30(1)(a) serves to protect both the effectiveness of investigations, and the procedures or methods employed for the conduct of such investigations. In the Enet case referenced above, the Supreme Court commented on the section 36(1) exemption, which serves to protect commercially sensitive information as follows:
“The exemption of certain records under s. 36(1) is established to protect commercially sensitive information and that must be seen as a protection of the commercial interests of public bodies. The sub-section recognises that there is a public interest in the protection of commercial sensitivity and this may be normally served by the operation of the exemption itself, which provides for the refusal of an FOI request .”
In my view, this is a clear indicator that there is a public interest in ensuring that the harms the various exemptions seek to prevent and that this public interest may be normally served by the application of the exemption itself. I believe that there is a strong public interest in protecting the effectiveness of investigations conducted by or on behalf of the HSE and the procedures or methods employed for the conduct thereof. Accordingly, in circumstances where I consider that the release of the records at issue would not serve the public interest to any real extent, I find, on balance, that the public interest would be better served by refusing to grant access to the records sought and I find that section 30(2) does not apply.
As I have found that the HSE was justified in refusing access under section 30(1)(a) of the FOI Act, I am therefore not required to consider HSE’s claims for exemption under sections 30(1)(b), 35(1), or 37(1) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision. I find that the HSE was justified in refusing, under section 30(1)(a) of the FOI Act, the applicant’s request for the statements sought.
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