Decision
Company X & The Health Service Executive (HSE)
From Office of the Information Commissioner (OIC)
Case number: OIC-155404-Q5V6V5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-155404-Q5V6V5
Published on
Whether the HSE was justified in its decision to grant partial access to records relating to a specified health care facility pursuant to section 36(3) of the FOI Act
16 October 2025
The applicant in this case is a health care facility (the applicant) and is represented by a solicitor and therefore all references to the applicant in this decision should be taken to include correspondence with the applicant’s solicitor where appropriate. This review arises from a decision previously issued by this Office in Case OIC-152519. Our review in that case arose from a decision made by the HSE to part-grant a request to which section 38 of the FOI Act applies. Section 38 applies where an FOI body concerned has, at some stage in the decision-making process, considered that the record(s) in question qualify for exemption under section 35 (information obtained in confidence), section 36 (commercially sensitive information) and/or section 37 (personal information) but that the records should be released in the public interest. Where section 38 applies, the body is required to notify affected third parties before making a final decision on whether or not the exemption(s) considered to apply should be overridden in the public interest. The requester or affected third parties, on receiving notice of the final decision of the FOI body, may apply directly to this Office for a review of that decision.
The applicant applied to this Office for a review of the decision of the HSE to release certain records affecting its interests. In our decision in case OIC-152519, we annulled the HSE’s decision and remitted the mater back for a fresh decision as we found that the HSE had not complied with the requirements of section 38 when processing the request. The original request was set out in a letter dated 3 June 2024, wherein solicitors representing the requester submitted a request to the HSE for access to certain Covid-19 related records concerning the applicant and certain policy and guidance documents provided to the applicant. Following the remittal of the matter, the HSE notified the applicant, by letter dated 21 November 2024, that it was considering the release, in the public interest, of certain records to which it considered section 36(1)(b) of the FOI Act to apply. On 16 December 2024, the applicant made submissions to the HSE wherein it objected to the release of the records. On 19 December 2024, the HSE issued its decision wherein it indicated that it had decided to grant partial access to the records in question. On 15 January 2025, the applicant applied to this Office for a review of the HSE’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the submissions made by the HSE and the applicant in the matter and I have examined the content of the records at issue. The original requester was invited to make submissions in relation to this case, but no such submissions were received. I have decided to conclude this review by way of a formal, binding decision.
In the schedule of records the HSE prepared when processing the request, it identified 27 pages of records to which it had decided to grant access, either in whole or in part. Having examined the records, I am satisfied that certain records are, in essence, duplicates. Pages 1 to 5 comprise a report that was prepared following a site visit of the applicant’s premises on 25 May 2020. Pages 11 to 15 and 16 to 20 are, in essence, duplicate copies of that report. Pages 6 to 10 comprise a report of a site visit on 15 May 2020. Pages 22 to 26 is a duplicate of that report. I have therefore removed pages 11 to 15, 16 to 20, and 22 to 26 from the scope of this review. Accordingly, this review is concerned solely with whether the HSE was justified in its decision to release in, whole or in part, pages 1 to 10, 21 and 27.
Before I address the substantive matters arising in this case, I wish to make a number of preliminary comments.
First, under section 22(12)(a) of the FOI Act, a decision to grant a request to which section 38 applies shall be presumed to have been justified unless the person to whom the information relates shows to the satisfaction of the Commissioner that the decision was not justified. This means that the onus is on the applicant of satisfying this Office that the HSE’s decision to release the records at issue was not justified.
Secondly, section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. This means I am limited in the description I can give of the applicant’s arguments for withholding the records under section 36 of the Act and of the contents of the records at issue.
Finally, a review by this Office is considered to be “de novo", which means that it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its original decision.
The Records at Issue
As I have outlined above, pages 1 to 5 comprise a report that was prepared following a site visit of the applicant’s premises on 25 May 2020, while pages 6 to 10 comprise a report of a site visit on 15 May 2020. Page 21 comprises two covering emails dated 9 June 2020 with the report of the site visit of 20 May 2020 attached. Page 27 comprises a covering email of 21 May 2020 which the report of the site visit of 15 May 2020 attached.
The report of the site visit of 15 May 2020 (pages 6 to 10) explains that the aim of the visit was to provide support and advice in delivering resident care during an outbreak of Covid-19 in the facility and that the visit was initiated when a number of residents presented to the local emergency department in the preceding weeks. Among other things, the report details the findings of the visiting team under various specified headings and contains recommendations for certain measures to be taken. The report also notes that the concerns of the visiting team and the contents of the report were shared with the Health Information and Quality Authority (HIQA).
The report of the site visit of 25 May 2020 (pages 1 to 5) explains that the preplanned infection prevention and control (IP&C) site visit was as a follow up to a previous visit and contains details of observations made during the site visit and recommendations made for measures to be taken to mitigate to help the facility work towards compliance with the “National Standards for IPC in Community Services 2018” issued by HIQA.
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 record concerned contain information whose disclosure 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 that person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in subsection (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 subsection (1)(b) is that disclosure of the information could reasonably be expected to result in material financial loss or gain. The test to be applied is whether the decision maker's expectation of the identified harm arising is reasonable. The harm test in the second part of subsection (1)(b) is whether disclosure of the information "could prejudice the competitive position" of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard to meet the test of "could reasonably be expected to" in the first part of subsection (1)(b). The Commissioner, however, takes the view that in invoking “prejudice,” the damage which could occur must be specified with a reasonable degree of clarity.
In its submissions to this Office, the applicant described itself as a private family-run business that plays a critical role in community healthcare and argued that disclosing the records at issue threatens its financial and operational stability. It argued that the release of commercially sensitive information would not only damage the facility's excellent reputation but also jeopardize its financial viability. It said that release of the records presents a real and significant risk that it could face an influx of claims, the financial burden of which it would be unable to sustain. It said its competitive position could be prejudiced by disclosure of the records, as reputation and trust are central to attracting residents and referrals. It said the records in question may discourage families from choosing the facility, reduce occupancy levels, and drive prospective clients toward competitors. In addition, it said hospitals and healthcare networks may hesitate to make referrals, while staff recruitment and retention can also suffer due to reputational concerns. It said the resulting decline in revenue will place its facility at a distinct disadvantage compared with its competitors.
In its submissions, the HSE said it acknowledges that disclosing the reports may reasonably be expected to harm the commercial business of the applicant on the basis that the release of critical feedback could prejudice the competitiveness of the facility leading to a loss of current or future residents, resulting in financial loss for the applicant’s business.
As I have outlined above, the reports comprising pages 1 to 5 and 6 to 10 contain details of findings made in the course of inspections. Having regard to the nature of those findings and to the low standard of proof required to meet the harm test set out in the second part of section 36(1)(b), I am satisfied that section 36(1)(b) applies to those reports. I accept the that the release of the records could prejudice the competitiveness of the applicant’s business. On the other hand, I am satisfied that pages 21 and 27 contain no information that could possibly give rise to any of the harms set out in the section. The records are nothing more than covering emails and contain no details of the contents of the reports or the substantive matters outlined in those reports. I find that section 36 (1)(b) does not apply to pages 21 or 27.
Section 36(3) The Public Interest Test
Section 36(3) provides that section 36(1) does not apply to a case in which the FOI body considers that the public interest would, on balance, be better served by granting than refusing to grant the request.
HSE’s Submissions
In its submissions the HSE said it considered the following public interest factors in favour of the release of the records:
• the public interest in ensuring the safety and quality of care in nursing homes,
• the public interest in the provision of information, allowing families to make informed choices about care,
• the public interest in a member of the public exercising the right of access under the FOI Act,
• the public interest in ensuring the HSE exercises greater openness and accountability in the functions it performs,
• the public interest in disclosing records which relate to how the HSE Covid-19 Response Support Team performed its duties during the Covid pandemic,
• the public interest in disclosing records to enable the proper scrutiny of the processes enacted by the HSE during the Covid-19 pandemic, and
• the public interest in allying public concerns on how the HSE managed the spread of Covid-19 infection in nursing homes.
On the matter of the factors it considered in favour of withholding the records, it said it considered the reputational damage which may lead to financial impact on the applicant.
The HSE said it concluded, on balance, that the public interest would be better served by granting access to the records as there is a very strong public interest in it being open and transparent with respect to the management of infection control in private nursing homes during the pandemic. It said the release of the records will demonstrate that the HSE exhibited a high level of support to private nursing homes during the pandemic and will show the public health concerns identified regarding clinical care in the applicant’s facility at a particular time and the actions recommended to address those concerns. It added that it is in the public interest that members of the public are aware of the standards of infection control expected from nursing homes and the compliance of same, allowing the public to make informed decisions about the quality of care being provided in nursing homes.
Applicant’s Submissions
In its submissions, the applicant said that while the FOI Act provides a right of access to information held by public bodies, this right is not absolute. It said section 36 specifically protects the commercially sensitive information of third parties, reflecting the Act’s intent to balance transparency with safeguarding legitimate private interests. It said the public interest test incorporated within Section 36 ensures that disclosure occurs only where it serves the greater public good. It argued that in this instance, the potential harm to the applicant and the wider community from disclosure far outweighs any marginal benefit in releasing the information. It said that protecting commercially sensitive information is itself in the public interest, as it ensures businesses can operate without undue risks to their financial stability.
The applicant said the HSE’s openness and accountability can be evaluated without the release of sensitive financial and operational data belonging to it. It argued that disclosing such records offers limited additional value to public scrutiny but poses a disproportionate risk of financial harm to its business. It noted that the records in question were prepared and issued by the HSE without its input and without an opportunity to review or challenge their content. It said that consequently, the records may present an incomplete or one-sided narrative that fails to reflect the operational and financial pressures faced by the applicant during the COVID-19 pandemic, including financial strain caused by staffing shortages and the need for agency staff, and inadequate communication and guidance from the HSE during peak periods of the pandemic, which, it said, further exacerbated operational challenges. It said the reports in question do not address the public concern on how the health sector managed the spread of Covid-19 infection in nursing homes and provides a skewed and inaccurate picture of the HSE involvement and assistance to the nursing homes. It argued that releasing the records does not meaningfully advance the goal of scrutinizing the HSE’s actions.
The applicant added that the release of commercially sensitive information would not only damage its excellent reputation but also jeopardize its financial viability. It said release presents a real and significant risk that it could face an influx of claims, the financial burden of which it would be unable to sustain. It said such an outcome would have severe and far-reaching consequences, including:
• the displacement of over 150 residents, many of whom are highly vulnerable due to severe medical conditions,
• the loss of over 160 jobs in an already strained healthcare sector, undermining the local economy and healthcare capacity, and
• the potential closure of the applicant’s facilities, compromising its ability to meet commercial loan obligations and risking financial ruin.
It said this outcome would not serve the public interest but would instead exacerbate the challenges faced by the healthcare system, particularly in light of University Hospital Limerick’s ongoing bed capacity crisis.
Finally, the applicant referenced a decision of this Office in Case OIC-120660 where it said the Office upheld the protection of commercially sensitive information to prevent undue harm to businesses. It said the precedent in that decision strongly supports its position, as the release of the requested records would have similarly damaging financial and operational repercussions.
My Analysis
It is important to note at the outset that the public interest balancing test in section 36(3) expressly acknowledges the potential for harm arising from the release of a record. Therefore, while the release of a record might give rise to one or more of the harms identified in section 36(1) of the FOI Act, this alone does not provide a sufficient basis for concluding that the public interest would be better served by refusing the request. The public interest test involves a balancing exercise between the public interest served by granting the request and the public interest served by refusing it.
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. 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 .”
In my view, the context in which the reports at issue were prepared are very relevant to my consideration of where the balance of the public interest lies in this case. The inspections were carried out at a specific point in time when the country was in the midst of an unprecedented pandemic. It is well documented that care facilities such as the applicant’s were under severe pressure at that time and that significant additional safeguards were expected in an effort to mitigate against the spread of Covid-19. It seems to me that it would not have been unusual for inspections such as those undertaken in this case to have given rise to the identification of areas where improvements in infection prevention and control could be made and for related recommendations for improvements to have been made.
Accordingly, it is not apparent to me that the contents of the reports, when considered against the circumstances in play at the time, are such that they could reasonably be regarded a true reflection of the level of care provide by the facility in the present day to the extent that their release might cause the harms identified by the applicant. Indeed, it is worth noting that HIQA regularly publish reports on inspections it carries out of facilities such as the applicant’s to ensure compliance with the Health Act, 2007 and that more recent reports relating to the applicant’s facility have been published. While I accept that the contents of those HIQA inspection reports are not of an identical nature to the contents of the reports at issue in this review, it seems to me that such reports are likely to serve as a more reliable indicator of the level of service provision that might be considered by potential clients.
Moreover, I consider that there is a strong public interest in disclosing details of how the HSE performed its duties during the Covid-19 pandemic, particularly in respect of the protection of the health and welfare of elderly and more vulnerable members of society, and in allowing the proper scrutiny of the processes enacted by the HSE during the pandemic. I am satisfied that the contents of the records at issue are such that their release would serve those interests.
I would add that given their contents, it is not apparent to me that the release of the records at issue could result in the applicant facing an influx of claims as it suggested. The fact that certain deficiencies may have been identified at a particular point in time does not, in my view, serve to show negligence or a particular deficiency in the precise level of care afforded to any particular individual. In any event, even if the applicant is correct in its assertion, it does not, in my view, mean that the public interest would favour the withholding of the records. Moreover, I would point out that our decision in Case OIC-120660 does not serve as a precedent for the protection of all commercially sensitive information. Each case must be treated on its merits. In that case, this Office found, on the particular facts arising, that the release of the information at issue, which was concerned with the affairs of the commercial entity, would not enhance the transparency or accountability of the FOI body to the extent that it would outweigh the public interest in protecting commercially sensitive information. The facts and circumstances of that case are entirely different to this one. In this case, the release of the records would, indeed, significantly serve the public interests I have outlined above.
Having carefully considered the matter, I find that the public interest would, on balance, be better served by the release of the reports at issue and that section 36(3) applies.
Having conducted a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision to grant partial access to pages 1 to 10, 21, and 27, albeit for different reasons in respect of pages 21 and 27.
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