Case number: OIC-112138-T6G7X5

Whether the HSE was justified in refusing access to various records relating to the award of a contract for the provision of a Health Performance Visualisation Platform (HPVP) on the basis of sections 29, 30, 31, 32, 33, 35, 36 and 37 of the FOI Act

 

16 June 2023

 

Background

All references to the applicant in this decision refers to the applicant company or its solicitor, as appropriate. By way of background, this case relates to the procurement procedure concerning a management reporting tool (the HPVP) required by the HSE. A HPVP is designed to provide real-time health data and trends across outpatient services, surgery, emergency departments, bed management and diagnostics.

On 2 December 2020, the HSE published a Contract Award Notice, awarding the contract for Phase 1 of the HPVP project to a third party company (Company X). The HSE’s position is that due to the prevailing emergency conditions faced by public health services at the time, it departed from its usual procurement procedures and instead used what is referred to as a “negotiated procedure without publication”. I understand that the applicant had provided a proof of concept document to the HSE in relation to Phase 1 of the project in 2019, but had not been notified that the contract had been awarded until the notice was published. I also understand that Expression of Interest documents for Phase 2 of the project were published on the eTenders website on 9 June 2023, and that responses are due by 18 July 2023.

On 22 February 2021, the applicant made an FOI request seeking access to six different categories of records relating to the HSE’s HPVP requirements, the procurement choices made, the successful company’s proposal and the award of the contract to Company X.

The HSE informed the applicant that due to the broad nature of the request, the decision maker had formed the view that it would cause a substantial and unreasonable interference with or disruption to the work of the HSE and that section 15(1(c) would apply. It offered the applicant assistance in refining its request so that it would not be refused on this basis (section 15(4) of the FOI Act refers). Accordingly, on 12 March 2021, the applicant informed the HSE that it had “substantially narrowed” its request. The applicant still sought access to six categories of records, but the categories had been refined.

On 26 March 2021, the HSE contacted Company X and purported to consult with it under section 38 of the FOI Act. Company X responded on 21 April 2021 and set out its position that the information contained in the contract award notice published on 7 December 2020, which included the overall price, the term and a description of the HPVP, was sufficient to satisfy the public interest and that no further records should be disclosed.

In a decision dated 23 April 2021, the HSE refused the refined request in full on the basis of sections 31(1)(a) and (b), 35, 36 and 37 of the FOI Act.

The applicant made an internal review request on 14 May 2021. Following further correspondence, the HSE issued its internal review decision on 19 July 2021. It refused the applicant’s request on the same basis as its original decision. On 26 August 2021, the applicant applied to this Office for a review of the HSE’s decision.

The HSE identified records relating to the applicant’s request held by four different parts of the HSE, as follows:

  • Acute Operations – 1 record
  • Acute Strategy – records 1-11 plus attachments (attachments numbered 1a, 1b, etc.) (31 records in all)
  • Integrated Information Service and Scheduled Care Transformation Programme (IIS): records 1-90
  • Office of the Head of Procurement (Procurement): records 12-30

As referenced above, the HSE refused to grant access to all of the records sought in its original and internal review decisions on the basis of sections 31(1)(a) and (b), 35, 36 and 37 of the FOI Act.

During the course of the review, the HSE revised its positon in relation to a number of the records concerned. It released 63 records in full or in part to the applicant and indicated that it now considered a number of the records it had identified as relevant to be outside the scope of its request. On 24 October 2022, this Office’s Investigator informed the applicant of her view that a number of records should not be considered as part of this review. These included records which had been created after the date of its FOI request and solely related to the processing of the request rather than its subject matter; records which did not come within the scope of its revised request and duplicate records which were listed more than once in the records schedules provided by different sections of the HSE. The full list is contained in the Appendix to this decision.

The HSE also informed this Office that it was relying on a combination of sections 29(1)(a), 30(1)(c), 31(1)(a), 32(1)(a), 33(3)(c)(iii), 35, 36 and 40(1)(b) of the FOI Act to refuse access to the remaining records in full or in part.

The Investigator invited the applicant to comment on the HSE’s revised position. On 10 November 2022 the applicant’s solicitor confirmed by telephone that it had received the records released by the HSE and that it had no further comment to make in relation to the review, or the records considered to be outside scope.

The Investigator also contacted Company X, informed it of the review and invited it to make submissions if it chose. No reply has been received to date.

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 by the HSE in support of its decision. I have also had regard to submission made by Company X to the HSE when it notified it of the FOI request. Finally, I have had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

I have carefully examined the records at issue and the HSE’s amended position as set out above. I am satisfied that the records which it has released do not need to be considered as part of this review. I am also satisfied that all of the IIS records identified by the HSE as outside scope either comprise correspondence with the Department of Health, correspondence relating to the processing of the applicant’s FOI request, and/or sample,

template or duplicate documents. Having regard to the specific wording of the applicant’s request, I am satisfied that the records relating to the Department of Health or to the processing of the applicant’s request do not come within the scope of its request in this case. It is of course, open to applicant to make an additional request for these records if it chooses.

In terms of the Acute Strategy records identified as duplicates of records listed in the IIS record schedule, I am satisfied that I only need consider each record once. Accordingly, I will consider these records as part of my consideration of the IIS records listed.

I am satisfied that the records listed in the Appendix have been released, are outside the scope of the applicant’s request, are duplicates of other records considered elsewhere or are otherwise outside the scope of this review. I am also satisfied that the applicant was informed of the scope of the review and did not raise any objections.

Based on the above, this review is concerned solely with whether the HSE was justified in refusing access to the following remaining records in full or in part on the basis of sections 29(1)(a), 30(1)(c), 31(1)(a), 32(1)(a), 33(3)(c)(iii), 35(1)(b), 36(1)(b), 36(1)(c) and 40(1)(b) of the FOI Act:

 

  • * Acute Strategy records 4b and 9 in part
  • * IIS records 15, 21, 31, 33, 44, 51, 57, 64 and 79 in part, and records 17, 23-25, 39, 55-56, 81-82 and 84-85 in full
  • * Procurement records 14, 15, 21, 22, 23, 24, 25, 26, 27, 28, 29 and 30 in full

Preliminary Matters

I should state that the way the HSE has engaged with this Office during this review has left much to be desired. My staff made numerous attempts to obtain a copy of the records concerned, and when they were provided, it transpired that the records schedules accompanying the records did not clearly or comprehensively set out the relevant exemptions being relied upon in respect of each record. This made it very difficult to progress this review.

Furthermore, the HSE did not initially reply to the Investigator’s request for submissions. When it did make submissions, they appeared to solely relate to one section of the HSE, when the records concerned were collated by four different directorates. During the course of this review, the HSE also amended its position in relation to a large number of the records concerned, which it stated it was now willing to release to the applicant in full or in part (63 records), or it considered to be outside the scope of its request. As noted above, a large number of the records were also duplicated across the different records schedules provide by the different sections of the HSE.

Additionally, there appears to have been no co-ordination between the different parts of the HSE in terms of the exemptions relied upon in respect of the records withheld. For instance, I note that Procurement record 27 contains a draft version of IIS record 44. Both divisions have relied on different exemptions in respect of the letter concerned and while

Procurement withheld the draft in full on the basis of section 31(1)(a) and 36(1)(b) and (c) of the FOI Act, IIS released the final version of the letter in part, withholding the remaining information on the basis of sections 29, 30 and 40 of the FOI Act. Moreover, a set of slides withheld from release (the attachment to Procurement records 16, 17 and 18) by the Procurement section on the basis of sections 31(1)(a) and 36(1)(b) and (c) has been released in part by the IIS (record 33), with the remainder withheld on the basis of section 31(1)(a).

I accept that draft versions of records are separate records in their own right which may reveal additional information, and release may give rise to different harms. However, the lack of consistency in the HSE’s decision across the divisions concerned, as to what exemptions apply and what records were within scope of the applicant’s request, has been most unsatisfactory in this case.

The Central Policy Unit (CPU) in the Department of Expenditure and Reform has published a Code of Practice for FOI bodies (the Code), which says that decision-makers should work collaboratively and co-operatively with FOI officers in dealing with requests and in particular provide responses, estimates of costs and other assistance as necessary on requests that are co-ordinated by FOI officers. It also states that in complex or difficult cases the decision-maker should liaise closely with the FOI Officer to identify relevant precedents relating to similar requests received by the body or should consider relevant decisions made by the Information Commissioner. I would expect the HSE to make arrangements so that future requests relating to records held across different divisions would be dealt with in a more effective and consistent way.

Consultation under section 38 of the FOI Act

Section 38 sets out the procedure to be followed where a decision to release information in a record has the potential to affect the interests of a third party. The relevant procedure applies in cases where, at some stage in the decision making process, the FOI body has formed the view (subject only to receiving the views of the party who gave the information to the FOI body and/or the party to whom the information relates) that the record(s) in question qualifies for exemption under one or more of the relevant exemptions in the FOI Act relating to third parties, i.e. section 35 (information obtained in confidence), section 36 (commercially sensitive information) or section 37 (personal information); but, based on the application of the relevant public interest test, the record(s) should be released. Section 38 requires the FOI body to notify the affected third parties that it is proposed to grant the request in the public interest and that the FOI body will consider any submissions from the third parties before deciding whether to grant or refuse the request.

However, in this case, the HSE’s decision maker stated that he was of the “preliminary view” that Company X’s “communications with the HSE relating to the contact and potentially elements of the contract itself may be confidential and commercially sensitive... and that the public interest is not likely to be better served by the HSE nonetheless releasing the records”. He went on to say that he “would appreciate [Company X’s] feedback and submissions about these issues before I reach a final decision on the request”.

As noted above, a consultation under section 38 only arises when an FOI body has formed the view that section 35, 36 or 37 applies to the information in the record(s) concerned, but

that, on balance, the public interest favours release. This was clearly not the view of the decision maker in this case. I would expect the HSE to use the FOI resources available, including guidance on the FOI Act published by the Central Policy Unit of the Department of Public Expenditure and Reform and by my Office, to assist it in its decision-making and in ensuring that its decisions and procedures comply with the obligations under the Act.

The applicant has indicated that it has “grave concerns in relation to the direct award of the Phase 1 Contract and the justification provided by the HSE for its reliance on the negotiated procedure without a prior publication of a call for competition”. It is important to note, as a preliminary matter, that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Therefore, while certain provisions of the Act implicitly render the motive of the requester relevant, 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.

Finally, it is also relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large given that the Act places no constraints on the uses to which the information contained in those records may be put.

Analysis and Findings

The applicant sought access to the following records:

 

a) Correspondence, emails and documentation which demonstrated that Company X was the only supplier which could deliver a HPVP to the HSE,

b) Correspondence, emails and documentation which include details of the HSE’s requirements and specification for the HPVP,

c) Company X’s proposal to the HSE for the HPVP,

d) Correspondence, emails and documentation which reference the request for a proposal from Company X, and the award of the contract to Company X,

e) Correspondence between the HSE leadership team and the HSE hospital group CEOs relating to the HPVP,

f) The HSE’s report under Regulation 84(1)(f) of the European Union (Award of Public Authority Contracts) Regulations 2016 and any other records whether authored by HSE staff or external advisors justifying its choice of procedure for the direct award of the contract to Company X,

g) A copy of the contract concluded by the HSE with Company X on 30 November 2020.

The HSE refused access to the records at issue in full or in part on the basis of sections 29(1)(a), 30(1)(c), 31(1)(a), 32(1)(a), 33(3)(c)(iii), 35(1)(b), 36(1)(b), 36(1)(c) and 40(1)(b) of the FOI Act.

Having carefully examined the records in question, it appears to me section 31(1)(a) is of most relevance. Accordingly, I will consider the applicability of section 31(1)(a) to the information at issue in the first instance.

Section 31(1)

The HSE relied on section 31(1)(a) in respect of its refusal to grant access to Procurement records 14, 15, 22, 23, 24, 25, 26, 27, 28, 29 and 30 in full and IIS records 15, 33 and 64, which were withheld in part. Having carefully examined the records concerned, I am satisfied that this exemption is also relevant to Procurement record 21, which the HSE refused in full.

Section 31(1)(a) is a mandatory exemption, which applies to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). It does not require the consideration of the public interest. LPP enables the client to maintain the confidentiality of two types of communication:

  • * confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and,
  • * confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

 

The concept of “once privileged always privileged” applies to advice privilege, and thus, unless otherwise lost or waived, lasts indefinitely. The Commissioner also takes the view that privilege attaches to records that form part of a continuum of correspondence that results from an original request for advice. Section 31 (1)(a) does not require consideration of the public interest.

Where a claim for exemption is made on the basis that the records are covered by LPP, each record should be considered in its own right.

In its submissions, the HSE essentially stated that the records were created for the dominant purpose of seeking legal advice. It said that it sought this advice in relation to the justification for proceeding with a negotiated procedure without publication in relation to the HPVP in the “[prevailing] circumstances” i.e. during the emergency situation related to the Covid-19 crisis. It stated that the legal advice concerned was provided by its legal advisers acting in their professional capacity. It also stated that the type of records which it considered to be exempt under section 31(1)(a) were draft documents, confidential e-mails between its legal advisers and the HSE concerning relevant matters and closely related material which would “disclose the substance of such communications”. It further stated that the legal advice was necessary as a defence against the “real possibility of a procedural challenge or query… as to the correctness or effectiveness of [the] steps contemplated”.

I must be circumspect in my description of withheld records. Having carefully considered the records at issue, I am satisfied that the majority of the records concerned comprise confidential communications made between the HSE and its professional legal adviser for

the purpose of obtaining and giving legal advice, or form part of a continuum of correspondence resulting from the original request for advice. Accordingly, I find that section 31(1)(a) applies to Procurement records 14-15, 21, 22-23, 26, 28 and 29, and IIS records 15, 33 and 64 in part and that the HSE was justified in refusing to grant access to these records on the basis of section 31(1)(a) of the FOI Act.

However, I am not satisfied that all of information contained in the relevant records form part of a continuum or reveal such legal advice, as follows:

  • * Procurement record 24 is an internal email thread on foot of the receipt of a proof of concept from the applicant. I am satisfied that it does not refer to or contain any legal advice.
  • * Procurement record 25 is an internal email forwarding seven attachments. I am satisfied that the email does not refer to or contain any legal advice. I note that the attachments are considered individually elsewhere (IIS records 41, 42, 55, 56, 57, 58 and 59).
  • * Procurement record 27 is an internal email circulating a copy of draft letter to the Sláintecare Executive Director in the Department of Health for review. I am satisfied that the email itself does not reveal or refer to any legal advice. I am satisfied that the attached letter is a draft version of IIS record 44. I note that record 44 was released in part with only a summary decision making table redacted on the basis of sections 29, 30 and 40. In the circumstances, I am satisfied that section 31(1)(a) does not apply to the letter. I will consider the table further below.
  • * Procurement record 30 is an internal email enclosing two attachments. The first is considered below at IIS record 33. The second is a factual document setting out details of the EU Remedies Directive. I am satisfied that neither the email nor the second attachment refer to or reveal legal advice.
  • * IIS record 15 is a draft briefing note on the HPVP dated 6 November 2020. It was released in part during the review. While I accept that the material redacted from pages 5 and 6 reveals confidential legal advice, I am satisfied that the remaining information withheld does not. This information will be considered under the other exemptions claimed by the HSE below.

Accordingly, I will proceed to examining the application of the other exemptions claimed against these, and the remaining records at issue.

Section 30

The HSE relied on section 30(1)(c) in respect of its refusal to grant access to IIS records 17, 23, 24, 39, 81, 82, 84 and 85 in full and 15, 21, 31, 44, 57 and 79 in part and Acute Strategy records 4b and 9 in part.

The attachment to Procurement record 27

The HSE released IIS record 44 in part, which is the final version of the attachment to Procurement record 27. It relied upon section 30(1)(c), among other exemptions, to withhold certain information contained in IIS Record 44. While the HSE did not rely on section 30(1)(c) in relation to the attachment to record 27, I am satisfied that it is appropriate to consider the record under this exemption.

Section 30(1)(c) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body.

Section 30(1)(c) is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of the Government or an FOI body. It is important to note that this exemption does not contain a harm test. It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation, positions, plans etc.

There is no requirement in section 30(1)(c) to take a view on the consequences of the disclosure of those positions or that disclosure would have an adverse effect on conduct by the Government or the FOI body of its negotiations. However, this matter may be relevant to the public interest test in section 30(2).

An FOI body relying on section 30(1)(c) should identify the relevant negotiations at issue. An FOI body must show to the Commissioner that release of the record could reasonably be expected to disclose positions taken (or to be taken) or plans, etc., used or followed (or to be used or followed) for the purpose of any negotiations.

In its submissions to this Office the HSE stated that the records at issue relate to Phase 1 of the HPVP project. It stated that the system contracted for Phase 1 across 28 acute public hospitals was procured on an urgent basis in light of the Covid-19 crisis. I understand that Phase 2 of the project is intended to effectively extend a HPVP system across the full 50 acute public hospitals. The HSE stated that Phase 2 will be a full competitive tender, via a negotiated procedure and that Phases 1 and 2 are closely interrelated. The HSE contended that the records at issue are not in the public domain and would not normally be released as part of a tender process. It argued that these records would disclose its positions and would therefore prejudice the HSE’s negotiating position in relation to Phase 2.

Having carefully examined the content of the records at issue, I am satisfied that they contain details which would reveal positions taken, or plans, procedures, criteria or instructions used or followed by the HSE for the purpose of the negotiations carried out in respect of Phase 1 of the HPVP project. I am also satisfied that their release to the world at large would also reveal positions likely to be taken and criteria likely to be adopted in the consideration of tender documents in relation to Phase 2 of the project. Accordingly, I find that section 30(1)(c) applies to the relevant records.

Public interest

I am then required to apply the public interest balancing test under section 30(2) of the FOI Act. Section 30(2) provides that subsection (1) shall not apply in relation to a case in which in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.

Applicant

As noted above, subject to the provisions of the FOI Act, I am required to disregard the applicant's reasons for its FOI request. Therefore, I can only take into account the purpose for which it seeks this information to the extent that it comprises a public interest.

In its submissions to this Office, the applicant made general arguments in relation to the public interest in the release of the records sought. It stated that it had “grave concerns in relation to the direct award” of the Phase 1 contract and the procurement approach taken by the HSE. The applicant referred to queries raised by the Minister for Public Expenditure in relation to “the spending of €1.25 billion by the Health Service Executive on goods and services last year which had not been competitively procured”. Essentially, the applicant’s position was that “understanding the HSE's justification of a direct award of a contract worth €7.5m and potentially €17.5m” to Company X was “a matter of public interest”.

HSE

The HSE’s position is that the record concerned reveal the positions it took and the result of negotiations with Company X in respect of Phase 1 of the HPVP Project, which is directly relevant to its upcoming negotiations in respect of Phase 2. It argued that the release of the information to the world at large would prejudice its negotiating position in the upcoming competition.

Analysis

As stated above, section 30(1)(c) does not contain a harm test. The provision makes no distinction between disclosures which have the potential to prejudice current or future negotiations or to cause some other harm and disclosures which do not. However, such a distinction should be made in applying the public interest test in section 30(2) to records which could reasonably be expected to disclose positions taken, etc., for the purposes of negotiations.

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. To summarise, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, with particular regard to the activities and decision making of FOI bodies. However, it is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (the Enet judgment), 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”.

I have found above that the records in question contain details which could reasonably be expected to reveal the HSE’s likely negotiating positions and criteria in respect of an upcoming procurement process. I am satisfied that this weighs heavily against the release of the records concerned in this case on the basis that there is a strong public interest in the protection of the HSE’s position for future negotiations and the resultant outlay of public monies. I am also satisfied that the public interest in openness and accountability with regard to how the HSE carries out its procurement functions has been met to a large extent in respect of the records released to the applicant during the review.ecords released to the applicant during the review.

eason in favour of the release of the records at issue which would outweigh the expected prejudice to the HSE’s negotiating position. Accordingly, I find that the public interest, on balance, does not favour the release of the records in question.

Section 36

The HSE refused access to the following records, which I have not already found to be exempt above, on the basis of sections 36(1)(b) and (c): Procurement record 24, IIS records 25, 55 and 56 in full and 51 (in part).

As a general principle, the Commissioner takes the view that section 36 is primarily aimed at protecting the commercial interests of parties engaged in commercial activity. He has found that there is some uncertainty as to the position of FOI bodies under section 36. However, depending on the circumstances of the case, the Commissioner has accepted that the FOI Act does not prohibit an FOI body, either as a decision making body or as a third party applicant to this Office, from relying on the provisions of section 36.

Section 36(1)(b) provides that an FOI body shall refuse to grant an FOI request if the record concerned contains 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 harm test in the first part of section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable. The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption. However, this Office takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.

Section 36(1)(c) provides that an FOI body shall refuse to grant an FOI request if the record concerned contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.

Section 36(1) is subject to a public interest balancing test which is set out at section 36(3). Subject to other provisions of the FOI Act, the exemption at section 36(1) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request.

The applicant

In its application for review to this Office, the applicant argued that the FOI Act “does not apply a blanket exemption of commercial sensitivity” to all of the relevant records. It stated that the HSE was required to consider all of the records separately and to redact commercially sensitive information rather than withhold records in their entirety. I note that this submission was made before the HSE released records during the review.

The HSE

The HSE made similar arguments as set out at section 30 above in respect of the contents of these records. It contended that the records are not in the public domain and would not normally be released as part of a tender process. It also argued that the records contain “proprietary details, distinguishing aspects and service delivery proposals” which were of “potential value to competitors”. It contended that the records contained specific details relating to pricing/contract rates and system configuration and deployment. The HSE argued that such project-specific information was an “intrinsic resource”, which was “a basis for competitive advantage”. It argued that the release of this information would benefit Company X’s competitors.

The HSE did not make detailed arguments in respect of section 36(1)(c), however it seems to me that the arguments it made above in relation to the potential harm to its negotiating position in relation to Phase 2 of the HPVP project are also relevant in terms of section 36(1)(c).

Company X

In its response to the HSE, Company X stated that the release of the records sought would “reveal trade secrets, financial, commercial, scientific and technical information about the company and its software products” all of which it considered to be “highly commercially sensitive and confidential”. It argued that the release of this information would “severely prejudice” its competitive position in the conduct of its business. Its position was this information would be “highly valuable” to its competitors. It also argued that the information would be “detrimental to [its] existing contracts” and to existing and future contracts.

Company X described its software as “unique, innovative and market leading”. It argued that the records at issue contain “significant amounts of intellectual property” and information in relation to software and process design which is “novel and ground breaking”, which took “over six years to develop”. It stated that this information would be of considerable value to its competitors who would “inevitably” use the information to their advantage.

Analysis

The information withheld in the records concerned comprises Company X’S Statement of Work (IIS record 25), a breakdown of the proposed costs for various aspects of Phase 1 and Phase 2 of the project (IIS record 51 in part), a detailed proof of concept from Company X (IIS record 55) and a detailed end-user evaluation report prepared by Company X for the HSE (IIS record 56). Procurement record 24 is an email thread between the applicant company and the HSE, concerning its submitted proof of concept. The final email in the thread is internal and sets out brief details of the HSE’s requirements and some details of costs relating to a proposed HPVP solution.

Having carefully examined the records concerned, I am satisfied that the information contained in the records provides detailed insights into the price, procedures, software, criteria used and other details about Phase 1 of the HPVP project which goes above and beyond what is publically available. I am also satisfied that in the circumstances where a

tender competition has been initiated but not concluded in respect of Phase 2, that this level of information could reasonably be expected to be of use to Company X’s competitors and that its release could prejudice its competitive position.

I am also satisfied that the release of information relating to the breakdown of projected costs in respect of Phase 1 and Phase 2 of the HPVP project, or information relating to the HSE’s requirements could reasonably be expected to prejudice the conduct or outcome of the HSE’s forthcoming negotiations for Phase 2. However, I do not accept that section 36(1)(b) or (c) applies to the parts of the email thread in Procurement Record 24 between the HSE and the applicant.

Accordingly, I find that section 36(1)(b) and/or section 36(1)(c) applies to the majority of the information in the records concerned.

Public interest

Having found that sections 36(1)(b) and (c) apply to certain information in the records, I am now required to consider whether, on balance, the public interest would be better served by granting than by refusing access to this information, under section 36(3). On the one hand, section 36(1) itself recognises a public interest in protecting commercially sensitive information. In this case, I accept that there is a public interest in protecting information that could prejudice the competitive position of Company X in relation to future contracts and projects, as well as the HSE’s future negotiating position. On the other hand, I must consider whether there is a public interest in disclosing the specific content of the withheld information.

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to 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, it is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, 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”.

Company X

Company X argued that release of the records would place its commercial rivals at a considerable competitive advantage which would be “unfair” to Company X. It acknowledged that, once a contract is awarded, there is a “public interest in knowing the overall price paid”. Company X also stated that the relevant “price together with a detailed description of the type of contract and service being provided” was already publically available in this case in the published award notice. Its position was that the publication of the price and other information, including the term and description of the HPVP was, in its view, “sufficient to satisfy the public interest”.

The applicant

The applicant’s view was that the “proper public interest” would not be served by “preserving the confidentiality” of the circumstances surrounding the award of the contract to Company X, which it considered to be inappropriate.

Analysis

I have carefully examined the content of the records to which I have found sections 36(1)(b) and (c) to apply, and have considered the parties’ submissions in full. I accept that there is a public interest in ensuring that there are proper controls and oversight in relation to the expenditure of public funds such as in relation to the HPVP project. I also accept that the procurement approach used in this case differed from the usual procedures in significant ways. However, in the circumstances of this case, it seems to me that the granular detail contained in the records at issue provides an insight into the operations of a third party organisation which is above and beyond what is generally publicly available. I also believe that the public interest in protecting the HSE’s negotiating procedures, to enable it to obtain the greatest value for money possible, outweighs the public interest in openness around its functions. It is relevant, in this regard, that the expressions of interest documents have been published for Phase 2 of this project but that the submissions have not yet been made.

I have already found above that the release of this information could reasonably be expected to prejudice the competitive position of Company X and the HSE’s upcoming negotiations for Phase 2. It further seems to me that openness and transparency concerning the relevant procurement processes has been served, to some extent, by the release of additional records by the HSE during this review. In the circumstances of this case, I find that the public interest, on balance, does not favour the release of the records at issue. Therefore, I find that the HSE was justified in refusing to allow access to the records concerned on the basis of sections 36(1)(b) and (c) of the FOI Act.

 

As I have found all of the records to which the HSE refused access on the basis of sections 29, 32, 33, 35 and 40 to be exempt on the basis of other exemptions, I do not need to consider the application of these sections to the records concerned.

Records to be released

In the interest of clarity, I am directing the release of the following records to the applicant:

* Procurement record 24 – release the parts of the email thread between the applicant and the HSE

* Procurement record 25 – release email

* Procurement record 27 – release the email and the attached letter, subject to the redaction of the vendor table on page 3

* Procurement record 30 – release email and attachment re Directive

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE’s decision. I find that the HSE was justified in refusing to grant access to certain records on the basis of section 31(1)(a). I affirm the HSE’s decision to refuse access to other records on the basis of sections 30(1)(c), 36(1)(b) and 36(1)(c). I find that the public interest, on balance, does not favour their release. I annul the HSE’s decision to refuse access to the remaining records in full or in part and direct their release.

Right of Appeal

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

 

Deirdre Gallagher
Senior Investigator

 

 

 

Appendix – Records outside the scope of this review

 

Records released during the review

  • Acute Operations record 1
  • Acute Strategy Records 1, 2, 3, 4, 5, 6, 7, 8, 10 and 11 in full; 2a, 4b and 9 in part
  • IIS Records 14, 16, 18, 19, 20, 22, 27, 28, 32, 35, 36, 52, 54, 60, 61, 66, 67, 68, 69, 70, 72, 73, 75, 76, 78, 80, 83, 86, 87, 88, 89 and 90 in full; 15, 21, 31, 33, 44, 47, 51, 57, 64, 71 and 79 in part
  • Procurement records 12, 13 and 19 in full and 16, 17 and 18 in part (emails only, no
  • attachment)

Records outside the scope of the FOI request

  • Acute Strategy: record 6c in part and 7e
  • IIS records 1-13, 26, 29, 30, 37, 38, 40, 42, 43, 45, 46, 47 (in part), 48, 50, 53, 59, 62 (in part), 63, 65, 74, 77 and the 4 unnumbered templates at the end of the schedule
  • Procurement record 20 – cover email does not reveal any relevant information. Attachments all considered elsewhere and 21 – cover email does not reveal any relevant information and attached letter is outside scope

 

Duplicate records

  • Acute Strategy Records 2a (information withheld duplicated in IIS record 44), 4a (duplicate of IIS record 57), 5a (duplicate of IIS record 47), 6a (duplicate of IIS record 48), 6b (duplicate of IIS record 47), 7a (duplicate of IIS record 55), 7b (duplicate of IIS record 56), 7c (duplicate of IIS record 57), 7d (duplicate of IIS record 58), 10a (duplicate of IIS record 40), 11a (duplicate of IIS record 42), 11b (duplicate of IIS record 55), 11c (duplicate of IIS record 56), 11d (duplicate of IIS record 57) and 11e (duplicate of IIS record 58)
  • IIS Records 34 (duplicate of IIS record 21), 41 (duplicate of IIS record 40), 49 (duplicate of IIS record 48), 55, 56 and 57 (duplicates of attachments to Procurement record 25), 58 (duplicate of IIS record 33) and 62 in part (duplicate of IIS record 37 in part)
  • Procurement records attachment to 16, 17 and 18 (duplicate of Acute Strategy record 9)

 

Additional records not under review

  • Acute Strategy record 3a, a document entitled “OPD Waiting List POC Final”, which was submitted to the HSE by the applicant. The HSE had refused to release the record on the basis that it was already available to the applicant (section 15(1)(i)(i) of the FOI Act refers).
  • IIS record 71 – released in part except for the redaction of hyperlinks to a copy of the final contract and the SLA agreement between the company who was awarded the contract and the HSE. Both records were considered separately (IIS record 79, released in part and IIS record 83, released in full).