Case number: 020533

Case 020533. Records relating to Board's inspections of private nursing home and of Board's investigation of complaints against the home - pre-commencement records - section 6(5)(a) and (b) - legal professional privilege - section 22(1)(a) - information obtained in confidence - section 26(1)(a) & (b) - commercially sensitive information - section 27(1)(b) - prejudice to the conduct or outcome of contractual or other negotiations - section 27(1)(c) - public interest - section 27(3) - personal information - section 28(1) - public interest - section 28(5) - records relating to an examination under the Ombudsman Act, 1980 - section 46(1)(c)(iii).

Case Summary

Facts

The requester sought access to records relating to all communications and findings by the South Eastern Health Board in the matter raised by [requester] on foot of two sworn Affidavits which detailed incidents alleged to have occurred in the nursing home in which the requester's late Mother was then resident. The request included virtually all records held by the Board which deal with the Home and included nursing home inspection reports and associated correspondence relating to the Home. The Board failed to give a decision within the prescribed time limit. This amounted to a deemed refusal of the request. Similarly, no decision was made by the Board at internal review stage. Following contact with this Office, the Board wrote to the requester saying it was giving access to certain records / portions of records but was not willing to provide access to the remaining records or portions of records; in relation to the refused records, the Board claimed exemptions under sections 22(1)(a), 27(1)(b) & (c), and 28(1) of the FOI Act. The Home claimed exemptions under sections 22(1)(a), 26(1)(a) & (b), 27(1)(b) & (c), and 28(1) of the FOI Act.

Decision

As provided for at section 6(4), a right of access under the FOI Act does not normally arise in the case of records created before the commencement date of the Act (21 October 1998 in the case of health boards). In this case, a number of the records identified by the Board as relevant to the request were created before 21 October 1998. With the exception of eight records (which related to personal information about the requester), the Commissioner found that neither section 6(5)(a) nor (b) applied to the remaining pre-commencement records.

Both the Board and the Home claimed legal professional privilege for certain records. It was clear to the Commissioner that the records did not fall into either of the two categories. In these circumstances, there was no case that legal professional privilege applied to these records and the Commissioner found accordingly.

The exemption contained at section 26 of the FOI Act is designed to protect information obtained in confidence. The Home through its solicitor claimed that section 26 applied to a significant number of records, the great majority of which were created by the Board itself - though a small number of them were created by the Home or its solicitor. The Commissioner found that by virtue of section 26(2), the exemptions in section 26(1) cannot apply to the records prepared by the Board and its staff and in respect of which the Home had claimed an exemption under section 26(1). In relation to records prepared by the Home (or its solicitor), the Commissioner found that three of the four requirements of section 26(1)(a) were not met, thus she was satisfied that the exemption contained at section 26(1)(a) did not apply to the particular records at issue. In relation to section 26(1)(b), the Commissioner found that the information in question did not have the necessary quality of confidence and that section 26(1)(b) did not apply. Both the Board and the Home claimed exemptions for some of the records under sections 27(1)(b) and 27(1)(c) of the FOI Act. In any event, even where it is found that section 27(1) applies, there is a further provision within section 27, at sub-section (3), which provides for the release of information which is commercially sensitive where such release is in the public interest. In the Commissioner's view, there is a significant public interest in the public knowing how health boards carry out nursing home inspections in individual cases and that the regulatory functions assigned to the boards achieve the purpose of the relevant legislation. Indeed, the Commissioner believes that reports of health board inspections of private nursing homes should be available as a matter of routine, subject only to the deletion of personal information and, occasionally, the protection of confidentiality in relation to third parties. There is an overriding public interest in ensuring that the health, security and welfare of elderly and vulnerable members of society is seen to be protected by the enforcement by health boards of the relevant legislation. There is, also, a significant public interest in the public knowing how health boards respond to, and investigate, complaints made to them by members of the public in relation to specific nursing homes. Accordingly, the Commissioner found that section 27 did not apply in relation to any of the records at issue in this review.

Personal information about third parties is exempt from release under section 28(1) of the FOI Act. There is a limited number of exceptions to the provision of section 28(1) of the FOI Act. Section 28(5)(a) provides for the release of personal information relating to third parties where the public interest that the request should be granted outweighs the right to privacy of the individual(s) to whom the information relates. There is a very significant public interest in members of the public having information relating to the welfare, quality of care and the level of security and dignity provided for older, more vulnerable members of society resident in institutions. There is also a strong public interest in increasing the openness and transparency of the process of investigation of complaints by public bodies, particularly where the complaints concern the provision of care for elderly or vulnerable people. In considering these factors, which favour release of the records in question, and bearing in mind the uncertainty as to the manner in which the Board dealt with the complaints made by the requester, the Commissioner found there were substantial, public interest arguments supporting release of the records.

In considering the public interest arguments favouring disclosure of the personal information of third parties, the Commissioner found no case at all that the public interest requires a breaching of the privacy rights of residents of the Home or of members of staff of the Home. However, in the case of the Proprietors of the Home, and where one of them also acted as the person in charge, the Commissioner found that personal matters of the proprietors inevitably bear significantly on the manner in which the Home was operated. These personal matters, in turn, were items which the Board had to consider in the course of its statutory inspections and assessments of the Home. Inevitably, the manner of operation of the Home would have had a major impact on the health, safety, and sense of security and well-being of the elderly, frail and (in some cases) vulnerable residents of the Home. The Commissioner took the view that certain of the records disclosing personal information of the proprietors are central to an understanding of how the Board conducted its statutory business in regulating and inspecting the Home; the same is the case in regard to understanding how the Board dealt with the complaints made by the requester. The Commissioner found that release of these records is necessary to provide a proper picture of how the Board conducted its business and that providing this proper picture serves, both in the circumstances of this case and more generally, a very significant public interest. Accordingly, the Commissioner found that the exemption provided for at section 28(1) did not apply to these records in so far as these records disclose personal information of the proprietors of the Home; section 28(1) did apply, however, to the extent that these records disclose personal information of staff members or residents of the Home.

Where any public body is in possession of or has a record under its control which relates to an investigation or examination carried out by the Ombudsman under the Ombudsman Act, 1980 it is entitled to claim that the provisions of the Freedom of Information Act do not apply to that record. This exclusion applies to a small number of records.

The Commissioner annulled the decision of the Board and directed that the Board grant the requester access to the records in question in accordance with the details set out in the schedules which accompany the decision and which form part of it .

Date of Decision: 16.02.2004

Our Reference: 020533

16.02.2004

Mr. X

Dear Mr. X

I refer to your application to this Office under the Freedom of Information (FOI) Act for a review of the decision of the South Eastern Health Board (the Board) on your FOI request of 12 July 2002. I regret the delay which has arisen in dealing with your application.

Background

In your FOI request of 12 July 2002, you referred to AA Nursing Home (the Home), BB and sought access to a copy of "the records relating to all communications and findings by the S.E.H.B. in the matter raised by [yourself] on foot of an Affidavit submission dated June 9th 1998 addressed to Dr. Patrick Lanigan, Senior Area Medical Officer. Also a second Affidavit addressed to Dr. P.J. Lanigan dated July 10th 1998."

As the Board failed to give a decision within the prescribed time limit, this amounted to a deemed refusal of your request. On 11 September 2002 you applied for an internal review by the Board. Again, no decision was made by the Board at internal review stage and you then applied to this Office, on 19 October 2002, for a review of the Board's deemed refusal of your request. Following contact with this Office, the Board wrote to you on 17 December 2002 saying it was giving you access to certain records / portions of records but was not willing to provide access to the remaining records or portions of records; in relation to the refused records, the Board claimed exemptions under sections 22(1)(a), 27(1)(b) & (c), and 28(1) of the FOI Act. As you were not satisfied with the Board's position you informed us, on 16 January 2003, that you wished this Office to proceed with the review.

During the course of the review, you clarified that your original request was intended to include nursing home inspection reports and associated correspondence relating to the Home. The records initially identified by the Board as encompassed in this review are:

  • those numbered 1 to 138 on the list prepared by the Board dated 17 December 2002 (now identified as Schedule A, A1 to A138), and,
  • the records numbered 1 to 259 on the list prepared by the Board dated 21 February 2003 (now identified as Schedule B, B1 to B259).

In a telephone conversation on 31 October 2003 with this Office, the Board raised the possibility that it holds additional records relevant to your request. On 27 November 2003, after a number of attempts to obtain a response from the Board, I was compelled to invoke my powers under section 37(1) of the FOI Act and require the Chief Executive of the Board to provide the outstanding records to me. Previously on 10 December 2002, in the early stages of this review, the Board had to be reminded of its obligations under the FOI Act to provide this Office with the records which are the subject of this review; it was warned that my Office would exercise its powers in accordance with section 37 of the FOI Act. Clearly, it is not acceptable that the Board should act in this fashion in relation to the conduct by my Office of a review under the FOI Act.

On 5 December 2003 I received a response from the Board to the section 37 requirement. The Board had identified, and provided copies of, the following additional records which it deemed relevant to your request:

  • those numbered 1 to 94 on the list prepared by the Board dated 5 December 2003 (now identified as Schedule C, C1 to C94);
  • those numbered 1 to 4 on the list prepared by the Board dated 5 December 2003 (now identified as Schedule D, D1 to D4);
  • those numbered 1 to 62 on the list prepared by the Board dated 5 December 2003 (now identified as Schedule E, E1 to E62); and,
  • those numbered 1 to 49 on the list prepared by the Board dated 5 December 2003 (now identified as Schedule F, F1 to F49).

The attached schedules (A, B, C, D, E, and F) list the records, their description, and my decision in relation to each record.

In the course of this review my Office has been in contact with the proprietors of the Home, whose interests might be affected by the release of at least some of the records at issue, and invited them to make any submissions they wished in relation to the release of records. The proprietors made a number of submissions on the matter through their solicitor. These submissions were made prior to the identification by the Board of the additional records now described as contained in Schedules C, D, E, and F. Given the nature of the records contained in Schedules C, D, E, and F and given the nature of the submissions already made by the Home through its solicitors, I am satisfied that it was not necessary to afford the Home an opportunity to make specific submissions in relation to the records contained in Schedules C, D, E, and F.

In carrying out this review, I have had regard to:

  • your application for review;
  • the correspondence / communications between the parties involved (including the proprietors of the Home) and this Office;
  • the contents of the records in question (copies of which have been provided to this Office by the Board for the purposes of this review); and,
  • the provisions of the Freedom of Information Act, 1997, as amended by the Freedom of Information (Amendment) Act, 2003.

I note that the Board has opted not to make a submission in this case.

Scope of Review

The records sought by you are defined by reference to the two sworn affidavits referred to in the request of 12 July 2002. These affidavits are quite lengthy but, in broad terms, the contents may be summarised as follows:

  1. Affidavit of 9 June 1998 - details a specific incident alleged to have occurred in the Home on 16/17 May 1998 and involving your late mother; comments negatively on the quality of professional care in the Home and on the inadequacy of its facilities; alleges breach of licencing conditions by the Home in relation to staffing levels and patient numbers; seeks an investigation by the Board of the extent of compliance by the Home with the licence and other statutory requirements; comments negatively on aspects of fire safety in the Home; seeks a revocation by the Board of the Home's licence.
  2. Affidavit of 10 July 1998 - details a specific incident alleged to have occurred in the Home on 5 June 1998 when you had returned to the Home, at night time, with your late mother; sets out a list of alleged irregularities in the operation of the Home; seeks a revocation by the Board of the Home's licence.

It is unfortunate that the Board did not at any stage engage with you in an effort to clarify the nature of the records sought. Given the range of issues raised in your affidavits, I am satisfied that the request includes virtually all records held by the Board which deal with the Home and which were created after 9 June 1998. In so far as can be established, these records are those identified by the Board and described above as constituting Schedules A, B, C, D, E, and F.

Whereas the Board, in its letter to you of 17 December 2002, took the position that certain records or part-records could be released to you, there is considerable confusion as to which of these records have actually been provided to you. For reasons of clarity, and because the interests of third parties may be involved, I am proceeding in this decision on the basis that all records have been refused by the Board and that, accordingly, it is necessary to address your right of access to each of the records in Schedules A, B, C, D, E, and F.

My review is concerned solely with deciding whether or not the Board is justified, in accordance with the provisions of the FOI Act, in deciding to refuse access to these records. Ten of the records (B244 - B254) in Schedule B post-date your request of 12 July 2002 and therefore do not fall within the scope of your request or within the scope of this review.

Findings

Preliminary Matters

Before dealing with the exemptions claimed by the Board, and with the submissions of the proprietors of the Home, I should explain that while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. I also have to refrain from disclosing information which an interested party contends is contained in an exempt record so as to preserve that party's right of further appeal to the High Court. These constraints mean that I can give only a limited description of the records at issue.

I would also draw attention to section 34(12)(b) of the Act which provides that, in a review, "a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." In this case, the Board has made no attempt to justify its decision to refuse the records sought. However, as release of some of the records in question might affect the interests of the Home and its proprietors, it is not open to me to direct the release of all of the records by default.

While this forms no part of my binding decision, I think it appropriate to draw attention to the provisions of section 45 of the FOI Act. While no civil or criminal action may lie against the Board or against this Office arising from the release of records in this case, the FOI Act confers no such privilege or immunity in the event of further publication of such records by the requester or any other party.

While the Board did not make any submission in support of the position set out in its letter to you of 17 December 2002, it has variously cited sections 22, 27 and 28 as the basis for exempting records from release. The Home, in the submissions made by its solicitor, claimed exemptions under sections 22(1)(a), 26(1)(a) & (b), 27(1)(b) & (c), and 28(1) of the FOI Act. The Home has also sought to rely on certain other provisions of the Act - section 10(1)(e) and section 17 - which are not grounds which may be invoked by a third party. My Office has dealt with this in correspondence with the Home's solicitor and it is not necessary to deal further with these matters in this decision.

For the purposes of this review I have considered each individual record in the light of any exemption claimed, whether by the Board or by the Home. In the case of records for which no exemption has been claimed, I have nevertheless considered whether there is an exemption which might apply. My conclusion in relation to each of the records is as set out in the schedules attached to this decision. Given the substantial number of individual records involved, and with a view to making this decision as coherent as possible, I have wherever possible dealt in the decision with records on a group basis.

I deal below with each of the provisions claimed as providing a basis for exempting records; but it is necessary, initially, to consider the relevance to your case of sub-sections 6(4) and (5) of the FOI Act.

Sections 6(4) & 6(5)

As provided for at section 6(4), a right of access under the FOI Act does not normally arise in the case of records created before the commencement date of the Act (21 October 1998 in the case of health boards). In this case, a number of the records identified by the Board as relevant to your request were created before 21 October 1998. Under Section 6(5) of the Act, however, there are two separate grounds on which (subject to the other provisions of the FOI Act) a right of access to pre-commencment records arises. These two grounds are:

  • where it can be shown that access is necessary or expedient in order to understand a record created after the commencement date [section 6(5)(a)], or
  • where the pre-commencement records relate to personal information about the person seeking access to them [section 6(5)(b)].

Section 6(5)(a)

A high level of proof is required in order to support a claim based on section 6(5)(a). It would be necessary for you to point to a particular document/record, created after the commencement date, and show why you could not understand it without having access to another (pre-commencement) document.

This Office has already dealt with the application of section 6(5)(a) in a number of published decisions, principally Case Number 98117 (Mr. ABE and the Department of the Marine and Natural Resources) and Case Number 98169 (Mrs. ABY and the Department of Education and Science). Both of these decisions are published on our Office website (www.oic.ie) and, for the purposes of this present review, I adopt the approach set out in them. These decisions set out a clear approach to interpreting the phrase "necessary or expedient in order to understand ...". I take the view that this provision is directed, not at the question of whether a record can be understood, in a literal sense, without reference to earlier records, but at whether its substance (or gist or subject matter) can be understood. These decisions make it clear that the fact that a document does not contain all the information that a reader might wish to have does not mean that the substance of a document cannot be understood. In these decisions, the word "expedient" is defined as "fit, proper or suitable to the circumstances of the case". In these two decisions, this Office concluded that the release of a pre-commencement record is justified only to the extent that such access is a suitable means to achieving the end of understanding the substance of the post-commencement record.

You have not identified any specific document, created since 21 October 1998, the understanding of which requires that you have access to the pre-commencement records which are the subject of this review. In all the circumstances, I see no basis for concluding that access to the pre-commencement records is necessary or expedient to understand any particular post-commencement record. I note that in a telephone conversation on 4 March 2003 with Mr. O'Neill of my Office you accepted that you have no right of access to records created prior to 21 October 1998 except in as much as they relate to personal information about yourself.

Section 6(5)(b)

A right of access to pre-commencement records exists where those records relate to personal information, as defined in the FOI Act, about the requester.

Section 2 of the FOI Acts defines "personal information" as : "..information about an identifiable individual that -(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or(b) is held by a public body on the understanding that it would be treated as confidential..."

Having examined the pre-commencement records in question (as listed in schedules A, B, D and, F), it is clear that, in the main, they consist of correspondence between the Home and the Board relating to inspections, recommendations arising out of inspections and general correspondence. These records relate to the accommodation provided by the Home, the number of residents under care, the recording systems in relation to admitting residents and resident care, the general administration of the Home, and recommendations made by the Board. I note that you have not made any argument that these records do relate to personal information about you. Having examined these records, I am satisfied that in eight instances they do relate to personal information about you. The particular records are A5, A31 to A33, A41 to A43, A52, B13 to B16, D1 (which is undated but which is likely to have been created shortly after the Board received your affidavit of 9 June 1998), D2 and F2 (portion only). These eight records are covered by the provision at section 6(5)(b) and are, accordingly, potentially releasable to you. With the exception of these eight records, I find that neither section 6(5)(a) nor (b) apply to the remaining pre-commencement records (which are identified as such in schedules A, B, D and, F) and it is not necessary for me to consider any other section of the Act under which the records may be exempt.

Section 22(1)(a)

The Board claims legal professional privilege for records A17 and A76. It appears from the Home's submissions on the matter that it is claiming legal professional privilege for records B190 to B192. Records A17 and A76 consist of two letters from the solicitor for the Home to your sister, Mrs. E. Y; records B190 to B192 constitute the Board's notes of a meeting held on 27 June 2001 between Board staff and the proprietors of the Home who were accompanied by their solicitor.

Section 22(1)(a) provides that "A head shall refuse to grant a request under section 7 if the record concerned ­(a) would be exempt from production in proceedings in a court on the ground of legal professional privilege,"

In considering whether the records in question would be exempt from production in a court on the ground of legal professional privilege, I must ignore the likelihood or otherwise of court proceedings taking place and bear in mind that legal professional privilege resides with the client. The question comes down simply to whether the client, in this case the Home, would succeed in withholding the documents on the ground of legal professional privilege in court proceedings.

Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

  1. communications made between the client and his/her legal adviser for the purpose of obtaining and/or giving legal advice, and
  2. communications made between the client and a legal adviser or the 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.

While the issue of legal professional privilege is a complex one it is possible to say, in general terms:

  • the purpose of the privilege is to aid the administration of justice, and,
  • the Courts will only grant such privilege where to do so supports the public interest in the proper conduct of the administration of justice and where this outweighs the disadvantage arising from a restriction on the disclosure of all the facts, and,
  • legal professional privilege protects confidential communications.

In the case of records A17 and A76, letters to your sister Mrs. Y and concerning your late mother's contract with the Home, it is very clear that they do not fall into either of the two categories set out at 1. and 2. above. In the case of records B190 to B192, minutes of a meeting, it is equally clear that they do not fall into either of the two categories set out at 1. and 2. above.

In these circumstances, there is no case that legal professional privilege applies to these records and I find accordingly.

Section 26

In broad terms, the exemption contained at section 26 of the FOI Act is designed to protect information obtained in confidence. The Board has not claimed this exemption in respect of any of the records in question. The Home, however, through its solicitor has claimed that section 26 applies to a significant number of records, the great majority of which were created by the Board itself - though a small number of them were created by the Home or its solicitor. Given the number of records involved, it is not realistic to consider the application of section 26 to each such record separately; rather, the records will be considered by category having regard to whether they were prepared by the Board or by the Home (or its solicitor).

Records Prepared by Board

Section 26(1) provides exemption for certain information given to a public body in confidence. Section 26(2) provides that this exemption does not apply to a record which is prepared by a head, a director or a member of the staff of the public body in the course of the performance of his or her functions. The one exception to this rule is where the disclosure of the information concerned "would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of, a public body ...". It follows that the exemption in section 26(1) is capable of applying to the records in this group, but only if disclosure of the information would constitute a breach of a duty of confidence owed by the Board to the staff, management or proprietors of the Home.

The Home has not made any argument that a duty of confidence arises by virtue of an agreement or enactment or otherwise by law. I am not aware of any agreement or enactment which might be relevant in this case. However, I do think it is reasonable to consider whether an equitable duty of confidence arises and whether release of the records would constitute a breach of such a duty of confidence. The tests to be applied in deciding whether there is a breach of an equitable duty of confidence are those set out in the case of Coco v. A. N. Clark (Engineers) Limited F.S. R. 415 (which is accepted as reflecting the Irish law on the subject - see, for example, House of Spring Gardens Limited v. Point Blank Limited [1984] I.R 611) in which Megarry, J. stated as follows: 'Three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself...must have the necessary quality of confidence about it. Secondly, that information must have been imparted in circumstances imposing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.'

In Case No. 98179 - Mr Michael Grange and the Department of Enterprise, Trade and Employment - the previous Information Commissioner (Mr. Kevin Murphy) adopted the following definition of "confidence" taken from F. Gurry "Breach of Confidence" in Essays in Equity; P. Finn (Ed.); Law Book Company, 1985, (p.111): "A confidence is formed whenever one party ('the confider') imparts to another ('the confidant') private or secret matters on the express or implied understanding that the communication is for a restricted purpose." I am happy to adopt this definition for the purposes of this review.

The records in this group were, by definition, prepared by members of staff of the Board. They were prepared in the course of the performance of their functions. They consist of the authors' own opinions and observations formed during the course of their visits to the Home and of the deliberations of Board staff in relation to the operation of the Home. In my view such matters cannot be the subject of a duty of confidence, if for no other reason than these opinions and observations were not 'imparted' to them by anyone.

Some of the information in these records consists of material provided by the Home to the staff of the Board. I have considered this information carefully. Details about the Home's size, accommodation, available activities, facilities and procedures is information that is readily available to any member of the public and much of which would be in the possession of the Board in any event. Such information does not consist of private or secret matters. I do not accept that it has the necessary quality of confidence required to create a duty of confidence.

It could be argued that some of the information in the records and opinions expressed by the staff of the Board were formed as a result of discussions with the residents, staff and the management of the Home. It is conceivable, although rather unlikely - given the purpose of the inspection visits and the circumstances of the creation of the reports and associated correspondence - that some of this information could have been imparted to the Board in confidence. However, having examined the contents of the records I am satisfied that they do not contain any information that could be said to have been imparted in circumstances imposing an obligation of confidence or that has the necessary quality of confidence about it. I do not accept that release of any part of these records would give rise to a breach of a duty of confidence. In the circumstances I find that by virtue of section 26(2), the exemptions in section 26(1) cannot apply to the records in this group, that is, records prepared by the Board and its staff and in respect of which the Home has claimed an exemption under section 26(1).

Records Prepared by Home

The records prepared by the Home or its Solicitors comprise some staff rosters and letters written in response to issues raised by the Board. For section 26(1)(a) to apply, there are four separate requirements to be satisfied:

  1. that the information was given in confidence, and
  2. that the information was given on the understanding that it would be kept confidential, and
  3. that the disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons in the future, and
  4. that it is of importance to the body that such further similar information should continue to be given to the body.
First two requirements of section 26(1)(a)

Having examined the records in question in this case, I find that the content is not intrinsically confidential. There is no indication that the author gave the information in confidence nor that the Board accepted that the record was intended to be confidential. Accordingly, I find that the first two requirements, as set out above, are not met.

Third requirement of section 26(1)(a)

To satisfy the third requirement it must be established that disclosure of the information in question would prejudice the giving of further similar information to the body by the same person or by other persons. As indicated above, the records were created in response to the Board's queries raised in the context of the continued registration of the Home by the Board. I think it is beyond dispute that any similar nursing home seeking registration, or seeking to retain its registration, would regard it as very important that it should give the maximum level of information in relation to its operations (in order to facilitate its registration by a health board). Accordingly, in the context of this case, I find that disclosure of the information in these records would not be likely to prejudice the giving of further such information to the Board by the Home or by other persons.

Fourth requirement of section 26(1)(a)

To satisfy the fourth requirement, it is necessary to establish that it is of importance to the body (the Board in this case) that further similar information should continue to be given to it. I find that in the context of the records sought, it is of importance to the Board that it should continue to receive such information and that the fourth requirement of section 26(1)(a) is satisfied.

Having found that three of the four requirements are not met, I am satisfied that the exemption contained at section 26(1)(a) does not apply to the particular records at issue in this portion of my decision.

As I have found that the records do not have the necessary quality of confidence required to satisfy section 26(1)(a) it follows that an equitable duty of confidence does not exist and that section 26(1)(b) does not apply.

Section 27

Both the Board and the Home claim exemptions for some of the records under sections 27(1)(b) and 27(1)(c) of the FOI Act. Again, because of the number of records involved, it is preferable to treat these records collectively rather than on a record by record basis. Section 27(1)(b) & (c) Section 27(1) provides as follows: "... a head shall refuse to grant a request under section 7 if the record concerned contains.....(b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates".

The tests in section 27(1)(b) and (c) are based, not on the nature of the information, but on the nature of the harm which might be occasioned by its release. The standard of proof required to meet these exemptions is relatively low in the sense that the test is not whether harm is certain to materialise, but whether it might do so.

Because of the requirements of section 43, as mentioned earlier in this decision, I am restricted in what I can say regarding the contents of the records in respect of which section 27 has been claimed. Clearly, the very fact that section 27 has been invoked suggests a view that release of the particular records could be detrimental to the commercial interests of the Home. I am not satisfied that either the Board - which made no submission at all in support of its reliance on section 27 - or the solicitor for the Home has made out a case which meets even the low threshold of proof required to sustain a section 27 claim. However, based on my own examination of the records in question, and notwithstanding the failure of the Board and/or the Home to make a sustainable case, I accept that section 27(1)(b) & (c) may apply to the records in question.

In any event, even where it is found that section 27(1) applies, there is a further provision within section 27, at sub-section (3), which provides for the release of information which is commercially sensitive where such release is in the public interest.

Section 27(3) Section 27(3) of the FOI Act provides that the exemptions contained in section 27(1) are not to apply in relation to a case "in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request .....".

Neither the Board nor the Home has made any submission in relation to the application of the public interest test.

I consider that there is a significant public interest in information about private nursing homes being available to the public. There are two particular reasons for taking this view.

  • The first is that the Exchequer, via the health boards, pays out substantial sums to such homes in the form of subventions to patients resident in nursing homes. Ensuring accountability in respect of this funding constitutes a very significant public interest.
  • The second reason is that the public has a very strong interest in knowing that such homes operate within the standards prescribed by law - in the Health (Nursing Homes) Act, 1990 along with related regulations - and which health boards, on behalf of the public, are required to enforce.

In my view, there is a significant public interest in the public knowing how health boards carry out nursing home inspections in individual cases and that the regulatory functions assigned to the boards achieve the purpose of the relevant legislation. Indeed, I take the view that in the normal course reports of health board inspections of private nursing homes should be available as a matter of routine, subject only to the deletion of personal information and, occasionally, the protection of confidentiality in relation to third parties.

There is an overriding public interest in ensuring that the health, security and welfare of elderly and vulnerable members of society is seen to be protected by the enforcement by health boards of the relevant legislation. There is, also, a significant public interest in the public knowing how health boards respond to, and investigate, complaints made to them by members of the public in relation to specific nursing homes. In this context, it is of interest that the relevant regulations - Nursing Homes (Care and Welfare) Regulations, 1993 (SI No. 226 of 1993) - deal specifically with the responsibilities of a health board where a complaint is made by, or on behalf of, a resident of a private nursing home. In addition to requiring the health board to investigate any such complaint, the Regulations require the health board concerned to inform the complainant of "the outcome of the consideration and investigation". Where a health board upholds a complaint of this type, it is entitled in appropriate cases "to issue a direction to the registered proprietor of the nursing home concerned, requiring such proprietor to take specified action in relation to the matter complained of." The Regulations require that the registered proprietor of the nursing home "shall comply with" such a direction. In the case of the complaints made by you against the Home, and to which the records in this review relate, it is not clear that the Board did inform you of the outcome of its investigation; neither is it clear, arising from the investigation, whether or not the Board issued a direction to the registered proprietors of the Home nor, if so, whether the Home complied with such a direction. In the light of these uncertainties, the public interest in knowing how precisely the Board dealt with your complaints against the Home becomes even more compelling.

I appreciate that there is a public interest in supporting an environment conducive to the conduct of business, including the operation of private nursing homes. However, in terms of balancing the competing public interests at issue here, I find that the advantages in terms of openness and accountability of disclosing the information in the records in question (subject to the deletion of some references which constitute personal information) outweigh any possible harm to the Home and that the public interest is better served by the release of these records. Accordingly, I find that section 27 does not apply in relation to any of the records at issue in this review.

Section 28

Section 28(1) of the FOI Act provides:

" Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information".

Personal information is defined in section 2(1) of the FOI Act as :

"... information about an identifiable individual that -

(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or(b) is held by a public body on the understanding that it would be treated by it as confidential,"

Items (i) to (xii) of section 2(1) go on to list categories of information which could be considered as being personal information. This list includes information relating to an individual's financial affairs, medical history, employment history, age, sex, property, tax affairs, etc. However these categories of information must also satisfy the requirements of either (a) or (b) above in order to meet the definition of personal information set out in the FOI Act.

In the circumstances of this review, it is not necessary to probe the extent to which personal information is contained in the records. I accept that a considerable number of the records at issue in this case do disclose personal information and that a number of individuals are potentially affected by release of such information. This is not a matter of dispute between the parties.

Both the Board and the Home have claimed that certain of the records should be refused by reference to section 28(1) of the FOI Act. In neither case has this claim been supported by detailed submissions. Once again, because of the number of records involved, it is preferable to treat these records collectively rather than on a record by record basis. However, in the interests of clarity it may be useful to identify, in broad terms, the people whose personal information is at issue in the records in question. The records disclose personal information of yourself, of your sisters and of your late mother; they also disclose personal information of the proprietors of the Home as well as of some residents and staff of the Home. I note that your sisters have consented to personal information about them, contained in the records in question, being released to you; and in relation to your late mother I note that your sister (Mrs. R. Z), who is the sole executor of your mother's estate, has by letter dated 6 March 2003, consented to information about your mother being made available to you. Accordingly, I take it that insofar as the records disclose personal information about yourself, your sisters or your late mother, this information may be released to you without further consideration. What remains to be decided is whether those records, or portions of records, which disclose the personal information of the remaining parties - the proprietors of the Home and some of the residents and staff of the Home - should be released.

The FOI Act provides strong protection for personal information where it is sought by a person other than the person to whom the information relates. Personal information about other parties is exempt from release under section 28(1) of the FOI Act. There is a limited number of exceptions to the provision of section 28(1) of the FOI Act. One exception is where the person (or persons) to whom the information relates has consented to its release, as provided for at section 28(2)(b) of the FOI Act. Except in relation to your own family members, such consent has not been given in this case. Potential release of such information is also provided for at section 28(5)(b) of the FOI Act, in a situation where release of the information would "benefit the individual" to whom it relates. I do not see how the release to you, of information which relates solely to another party (or parties), would be of any benefit to that party (or parties) and, accordingly, I consider that no right of access to the records containing that information arises under section 28(5)(b) of the FOI Act.

Section 28(5)(a) provides for the release of personal information relating to third parties where the public interest that the request should be granted outweighs the right to privacy of the individual(s) to whom the information relates. To apply section 28(5), it is necessary to identify the various public interests served by the release of the particular record as well as those served by the withholding of that record. Relative weights must then be applied to these conflicting public interests and a judgement made as to which set of public interests outweighs the other.

The public interest considerations already identified as relevant in the context of section 27 above are also relevant in considering the application of section 28(5). In addition to those, I believe it is also relevant in the present context to take account of the following public interest considerations:

  • the public interest in individuals being able to understand the reasons for courses of action taken by a public body;
  • the public interest in members of the public knowing how a public body performs its regulatory functions, and being able to form an opinion as to whether those functions are being properly discharged;
  • the very significant public interest in members of the public having information relating to the welfare, quality of care and the level of security and dignity provided for older, more vulnerable members of society resident in institutions;
  • the public interest in increasing the openness and transparency of the process of investigation of complaints by public bodies, particularly where the complaints concern the provision of care for elderly or vulnerable people.

In considering these factors, which favour release of the records in question, it is relevant to bear in mind the comments already made in the context of section 27 regarding the uncertainty as to the manner in which the Board dealt with the complaints made by you. I believe that the effect of this uncertainty is to add further weight to the existing, relatively substantial, public interest arguments supporting release of the records.

In considering the public interest factors which favour withholding the records, I have taken the following into account:

  • the public interest, recognised by the FOI Act itself, in protecting the right to privacy of members of the public;
  • the public interest in members of the public / business community being able to communicate in confidence with public bodies, without fear of disclosure, in relation to sensitive matters;
  • the public interest in ensuring the flow of information to public bodies; and,
  • the public interest in public bodies being enabled to perform their functions effectively and efficiently particularly in relation to issues relating to the investigation of alleged breaches of regulations.

In considering the public interest arguments favouring disclosure of the personal information of third parties, I can see no case at all that the public interest requires a breaching of the privacy rights of residents of the Home or of members of staff of the Home. On this basis, I find that all identifying references in the case of residents and of staff members (with one general exception) should be deleted from any records which are to be released. The one exception concerns the names and professional registration (PIN) numbers of nurses employed in the Home. I understand that the register of enrolled nurses maintained by An Bord Altranais - the statutory regulatory body for nurses in Ireland - is, in effect, a public register and that the identification of a person as a registered nurse, along with the relevant PIN number, does not constitute personal information.

The records in Schedule F include copies of extracts from operational records of the Home relating to complaints, the use of restraints and the recording of accidents. Many of the entries in these records are pre-commencement and are not releasable under the FOI Act. One exception is the entry dated 5 June 1998, in the Complaints Book, which relates to personal information about you and is releasable. In the case of the other entries relating to complaints, restraints and accidents, and which are post-commencement records, I am not satisfied that the mere deletion of the names of the residents involved is sufficient to protect their identities. Given the type of detail recorded, and given the relatively small number of residents in the Home, I am concerned that the release of any of this material could result in the identification of the residents concerned. Accordingly, I find that none of this material should be released.

Personal Information of the Proprietors/Person in charge

The Nursing Homes (Care and Welfare) Regulations, 1993 require that each registered nursing home must have a "person in charge" who is designated as being "the person in charge of the care and welfare of patients in a nursing home". The Regulations assign specific responsibilities, in relation to patient welfare and the general good management of the nursing home, to the person in charge. I understand that in the case of the Home, and in respect of the period covered by your request, one of the proprietors was also the designated person in charge.

I recognise that to direct the release of personal information of the proprietors of the Home should be contemplated only where the public interest served in so doing is sufficiently strong to displace the existing, recognised public interest in protecting the privacy rights of the proprietors. As the operators and managers of the Home, and where one of them also acted as the person in charge, it is the case that personal matters of the proprietors inevitably bear significantly on the manner in which the Home was operated. These personal matters, in turn, were items which the Board had to consider in the course of its statutory inspections and assessments of the Home. Inevitably, the manner of operation of the Home would have had a major impact on the health, safety, and sense of security and well-being of the elderly, frail and (in some cases) vulnerable residents of the Home. I am constrained as to the level of detail which I can give in this decision, but I feel I can say that these personal matters represented significant considerations for the Board in the course of its dealings with the Home. On the other hand, and in the interests of balance, it is important to clarify that the Board also had regard to many other considerations in the course of its dealings with the Home.

It is again important to refer to my conclusion that there is considerable uncertainty as to the manner in which the Board dealt with your complaints against the Home; this, in turn, results in uncertainty as to the manner in which the Board, on a broader level, discharged its statutory functions in respect of the Home.

Having considered all of these matter very carefully, I take the view that certain of the records disclosing personal information of the proprietors are central to an understanding of how the Board conducted its statutory business in regulating and inspecting the Home; the same is the case in regard to understanding how the Board dealt with the complaints made by you, as set out in your two sworn affidavits. I take the view that the release of these records is necessary to provide a proper picture of how the Board conducted its business and that providing this proper picture serves, both in the circumstances of this case and more generally, a very significant public interest.

In the case of records B153 to B154, B163 to B165, B169 to B170, and, B171 to B172 I find that the weight attaching to the public interest arguments favouring release of the records is significantly more than that attaching to the other public interest arguments identified above. In the circumstances, I consider that the public interest is better served by the release of these records than by the protection of the right to privacy of the proprietors of the Home. Accordingly, I find that the exemption provided for at section 28(1) does not apply to these records in so far as these records disclose personal information of the proprietors of the Home; section 28(1) does apply, however, to the extent that these records disclose personal information of staff members or residents of the Home.

Section 46

Section 46(1)(c)(iii) of the FOI Act states:

"This Act does not apply to-(c) a record relating to-..(iii) an investigation or examination carried out by the Ombudsman under the Ombudsman Act, 1980."

Where any public body is in possession of or has a record under its control which relates to an investigation or examination carried out by the Ombudsman under the Ombudsman Act, 1980 it is entitled to claim that the provisions of the Freedom of Information Act do not apply to that record. This exclusion applies to records number A107, A108 and A121.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 as amended, I hereby annul the decision of the Board. I direct instead that the Board grant you access to the records in question in accordance with the details set out in the schedules which accompany this decision and which form part of it .

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date of this letter

Yours sincerely




Emily O'Reilly
Information Commissioner