Decision
Mr. Ken Foxe , Right to Know CLG & Rotunda Hospital
From Office of the Information Commissioner (OIC)
Case number: OIC-152601-M4D0Z6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-152601-M4D0Z6
Published on
Whether the Hospital was justified in refusing access to records relating to the purchase of a number of properties
3 June 2025
In a request dated 30 July 2024, the applicant sought access to a copy of the business case, cost benefit analysis, approval or sanction documents associated with the recent purchase of a number of properties on Cavendish Row by the Hospital. In a decision dated 29 August 2024, the Hospital refused the request on the basis of sections 35(1) and 37(1) of the FOI Act. It said that the requested records are confidential as the information constitutes the intellectual property of the board and is not intended for public use. On 29 August 2024, the applicant sought an internal review of the Hospital’s decision. He argued that the information requested is not exempt under sections 35 or 37 and made certain submissions in this regard.
The Hospital issued its internal review decision on 30 September 2024. It affirmed the decision to refuse the request but varied the basis for the refusal. It said that the primary reason for its decision is that the purchase of the properties in question was entirely funded through “Rotunda Board funds” and no external approval or sanction was required, aside from that of the board itself. It said that the business case and cost-benefit analysis documents were specifically created for the internal use of the board and are deemed confidential. It said that the refusal to grant access to the documents is based on section 30(1) and 30(2) of the FOI Act. However, the text of the sections included in the decision does not correspond to these provisions, or indeed to any provisions in the FOI Act. I will address this matter further below. On 7 October 2024, the applicant applied to this Office for a review of the Hospital’s decision.
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 applicant and to the decision-making records referenced above. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The Hospital identified four records as coming within the scope of the applicant’s request. All records have been refused in full. This review is concerned solely with whether the Hospital was justified in its decision to refuse access to the records at issue.
During the course of the review, and in line with our procedures, I sought focused submissions from the Hospital. Noting the reference to text which does not appear in the FOI Act, I asked the FOI body to explain the basis for its refusal with reference to relevant provisions of the legislation. The Hospital did not provide submissions within the relevant timeframe. A reminder email was issued. I confirmed that if no substantive response was received, this Office would assume that the FOI body had no further submissions to make in relation to the records concerned and that we may proceed to a decision based on our analysis, without further reference to the organisation. No response was received. The request for focused submissions was issued to the general FOI email address. For the avoidance of doubt, I also forwarded my correspondence to a named staff member of the Hospital who had been in contact with this Office at an earlier stage of the review. I provided a final deadline after which I confirmed that I would progress the review accordingly. No submissions or further communications were received.
Focused submissions are a final opportunity for FOI bodies to justify their decision-making. In light of the Hospital’s lack of engagement, I am confined to considering the contents of the original and internal review decisions which issued, as well as the records themselves. As the Hospital is no doubt aware, the Central Policy Unit of the Department of Public Expenditure and Reform has published, pursuant to section 48(1) of the Act, a Code of Practice for FOI bodies (see www.foi.gov.ie). Under section 48(3) of the Act, FOI bodies are required to have regard to that Code in the performance of their functions under the Act. Section 9 of the Code of Practice concerns engagement with this Office and notes that “strong communications and positive and constructive engagement between public bodies… and the OIC is absolutely essential to enable FOI to work effectively”. The manner in which the Hospital engaged with this Office during the current review falls short of expected standards. I expect the FOI body to take measures to ensure that it has regard to the Code of Practice when processing future FOI requests and when dealing with this Office.
As noted above, in its internal review decision the Hospital relied on what it referred to as sections 30(1) and 30(2) of the FOI Act. It included the following text:
“The relevant section 30(1) and section 30(2) states:
“30(1) A head shall refuse to grant a request if the record concerned contains:
(a) Information that was given to or received by a public body in the course of its deliberative processes, or
(b) Information that is created for the purpose of those processes, and the disclosure of that information would, or would be likely to, prejudice those processes.
30(2) A head shall refuse to grant a request if the record concerned contains:
(a) Opinions, advice, or recommendations prepared for the purposes of the deliberative processes of a public body, or
(b) Any other record created in the course of those processes, and the disclosure of that information would, or would be likely to, prejudice those processes.””
The sections and text referenced by the Hospital do not correspond to any provisions in the FOI Act. Section 30 of the FOI Act protects certain records relating to the functions and negotiations of FOI bodies. The text of the exemption provision does not reference deliberative processes. Section 29 of the FOI Act does exempt records relating to the deliberative processes of FOI bodies. However, the provision differs significantly from the text cited by the Hospital. The exemption at section 29 is subject to a public interest test and the public interest test is stronger than the public interest test in other provisions of the Act. It must be shown that the granting of the request would be contrary to the public interest. In my request for focused submissions, I asked the Hospital to provide a source for the sections referenced in its internal review decision and I also asked it to explain its position in this regard. I asked that it explain the basis for its refusal of the records, with reference to relevant provisions of the FOI Act. As noted above, no submissions were received.
In its internal review decision, the Hospital made certain other statements in support of its position. It said that the properties in question were purchased using funds solely from the board’s own resources. It said that no external approval or sanction was required from public bodies or regulatory authorities. It said that, as a result, no external oversight documentation, which might otherwise be accessible under FOI legislation, exists in relation to this transaction. It said that the documents sought were specifically intended for the board’s internal use to facilitate decision-making. It said that the records were considered confidential and it again referenced sections 30(1) and 30(2), which it said address the protection of deliberative processes within public bodies.
The Hospital said that disclosure of the documents could hinder the board’s ability to engage in open and candid discussions, thereby affecting its operational effectiveness. It said that the nature of the business case and cost-benefit analysis inherently involves candid discussions, assessments, and evaluations by the board. It said that the documents were designed to facilitate informed decision-making and, as such, are central to the board’s deliberative processes. Again, the Hospital did not reference any particular exemption provisions contained within the FOI Act. In my request for focused submissions, I noted that if it wished to now rely on specific exemptions, it should answer sample questions associated with the provisions and consider and provide submissions in respect of any exclusions to the relevant exemption and any public interest test. Again, no such submissions were received.
In his application to this Office, the applicant said that he found the decision issued by the Hospital to be confusing. He said that he is unfamiliar with the text used to exempt the records under section 30, which he said is intended to protect the functions and negotiations of FOI bodies. He said that, overall, the decision appears to be based on the principle that the board of the Hospital has some separate status to the rest of the public body whereby the work that they do, the decisions they make, and the material they use to inform such decisions are exempt under the FOI Act. He said that this is confusing to him in a context where the meetings of the board are published on an ongoing basis on the website of the Hospital. He said that he finds it difficult to follow any of the logic or decision grounds in the internal review. He said that, at the very least, they have not been adequately explained or reasoned. He said that no public interest test has been undertaken, as required under section 30 of the FOI Act. He said that he also wished to bring to my attention the original decision where section 35 of the FOI Act was misapplied. He said that this position was dropped at internal review “and replaced with something equally, if not more, baffling”.
The applicant said that the standard of decisions at initial and internal review stage strongly suggests “that the Rotunda Hospital is not providing staff involved with FOI appropriate training for dealing with requests”. He said that this is not the first time he has had to appeal a decision of the Hospital in such circumstances.
The substantive question I must consider is whether the Hospital has justified its decision to refuse access to the records at issue. The FOI body’s reference to exemption provisions which do not appear within the FOI Act serves to fundamentally undermine its position. In respect of more general arguments advanced about the source of funding, internal confidentiality, deliberative processes and the nature of the documents in question, the Hospital has failed to substantiate its position with reference to any exemption provisions. It has not endeavoured to explain its reasoning to this Office.
I note the applicant’s reference to the “confusing” nature of the decision issued by the Hospital. I must say that I agree with this assessment. While I note that the FOI body has referenced its deliberative processes, it has not engaged with the requirements of section 29 of the Act, which concerns records relating to deliberations of FOI bodies. Section 13 of the FOI Act requires that where a body decides to refuse to grant a request, it shall specify the reasons for the refusal, any provisions of the FOI Act pursuant to which the request is refused, findings on any material issues relevant to the decision and the particulars of any matter relating to the public interest taken into consideration for the purposes of the decision. The Hospital has not complied with the above requirements. It is not clear to me on what basis the body has refused access, nor has the Hospital attempted to explain its position.
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Hospital to satisfy this Office that its decision to refuse access to the records sought, either in whole or in part, was justified. In the circumstances, taking into account the internal review decision of the Hospital and the lack of submissions provided to this Office, I simply cannot find that the FOI body has justified its decision to refuse access to the requested records.
In light of the above finding, I have considered whether it would be appropriate to direct the release of the four records at issue. As noted above, the records relate to the Hospital’s purchase of particular properties. They comprise feasibility study proposals, financial impact analysis, board paper proposals, and minutes of finance and audit committee meetings. The Hospital has made general statements which I consider could feasibly relate to exemption provisions contained in the FOI Act, notwithstanding the body’s failure to identify same. However, it has not adequately considered the specifics of any provision, including relevant exclusions or public interest tests. The Hospital has refused access to the records in full and has provided general reasons which largely relate to the nature of the documents. It does not appear to have engaged with the specific contents of the records at issue.
The role of this Office is to review decisions taken by FOI bodies on requests, not to effectively act as a first instance decision maker in circumstances where a body has failed to sufficiently engage. The records at issue relate to the Hospital’s financial dealings and certain proposals. It seems to me that I would need further information in order to determine whether any of the mandatory provisions in the FOI Act apply to exempt information contained in the records. In the circumstances, and noting the Hospital’s lack of engagement, I consider that the most appropriate course of action to take is to annul the decision in its entirety, the effect of which is that the body must consider the applicant’s request afresh and make a new first instance decision in accordance with the provisions of the FOI Act. I understand that this will result in further delays for the applicant but I do not believe that any other course of action would be appropriate. The applicant will have a right to an internal review and to a review by this Office if he is not satisfied with the new decision issued.
In making a new first instance decision, the Hospital should have close regard to guidance issued by this Office and the CPU as well as the comments above. Should it seek to rely on any exemption provisions, it should ensure that the requirements of the relevant subsection are met. I would also remind the Hospital that section 11(1) of the FOI Act confers a general right of access to records held by an FOI body. All records held by an FOI body fall within the scope of the Act unless they are otherwise excluded by one or more of the other provisions of the Act. In its decision-making records, the Hospital repeatedly referenced the fact that the records relate to the work of its board. For the avoidance of doubt, the fact that records may relate to a board does not, in and of itself, render them exempt from release under the FOI Act as a class. The Hospital would need to justify its refusal of the records or information therein with reference to a relevant exemption provision, taking into account any exclusions to the exemption and any associated public interest test.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Hospital’s decision and direct it to undertake a fresh decision-making process in relation to the FOI request.
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.
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Alison Connolly
Investigator