Case number: 030830

Case 030830. Note:The decision in this case was appealed to the High Court.  The High Court Judgment of 30 March 2007 may be accessedhere.

Request for records of correspondence between the Hospital and the Post Mortem (Dunne) Inquiry and between the Hospital and others pertaining to the Inquiry - whether disclosure would constitute a breach of a duty of confidence - section 26(1)(b) - whether the information was provided to a public body in confidence - section 26(1)(a) - whether the records relate to the business of an inquiry - section 22(1A) - whether the records qualify for legal professional privilege - section 22(1)(a) - whether the records relate to the deliberative process of a public body - section 20(1) - whether release could prejudice the effectiveness of investigations by a public body, have significant adverse effect on the performance of management functions or disclose positions taken by a public body in negotiations - sections 21(1)(a), (21)(1)(b), 21(1)(c) - whether release could prejudice the fairness of civil proceedings in a court or other tribunal - section 23(1)(a)(iv) - whether release would involve the disclosure of personal information - section 28 - whether access to copies of published articles may be given and the form of such access - sections 46(2), 12.

Case Summary

Facts

The requester sought from the Hospital access to records comprising correspondence with and relating to the Dunne Inquiry which was set up by the Minister for Health and Children to review post mortem examination policy, practice and procedure in the State since 1970.

The Hospital refused access to all of the records on the grounds that they were confidential as provided for in an undertaking on confidentiality given to the Inquiry [section 26(1)(b)]; that there was an understanding and expectation of confidence in respect of the records given by the Inquiry and by others to the Hospital [section 26(1)(a)]; that the records contained matter relating to the Hospital's deliberative processes, the release of which would be contrary to the public interest [section 20(1)]; that release of the records would prejudice the effectiveness of investigations conducted by the Hospital, have a significant adverse effect on the Hospital's performance of its management functions and disclose positions taken for the purposes of negotiations [sections 21(1)(a), 21(1)(b), 21(1)(c)] and that the records were protected by legal professional privilege [section 22(1)(a)] . In the course of the review, the Hospital also sought to rely on the exemption at section 23(1)(a)(iv) in claiming that access to the records could reasonably be expected to prejudice or impair the fairness of civil proceedings and on section 22(1A) which allows for the refusal of access to records relating to the business of an inquiry - the latter provision having been inserted into the FOI Act, 1997 by the FOI Amendment Act, 2003.

The requester applied to the Commissioner for a review of that decision. Before the Commissioner made her decision, it was announced that the Inquiry would cease to exist on 31 March 2005.

Decision

The Commissioner makes it clear in this case that where, in the course of a review, legislation or circumstances change, she will make her decision on the basis of the facts and circumstances (including a change in the legislation) applying at the time of her (the Commissioner's) decision.

The Commissioner took the view that section 22(1A) is potentially relevant only where, at the time of the decision, the performance of the functions of the tribunal, body or individual which the exemption is designed to protect, has not been completed. Being satisfied that, at the time of her decision, the Dunne Inquiry had concluded and no other body or individual had been appointed to enquire in to the subject matter of the records, she concluded that section 22(1A) had no application in this case.

In relation to section 26(1), the Commissioner found that most of the records had been prepared by the staff of the Hospital or by its legal team in the course of the performance of their functions. This meant that section 26(2) applied so that any duty of confidence which might exist in respect of the information in records prepared by the Hospital would have to be owed to the Inquiry itself or to third parties in order for the section 26(1) exemption to be upheld. Given that the Inquiry has ceased to exist, the finding was that the undertakings given in the confidentiality agreement no longer have any force. The Commissioner went on to conclude that, in these circumstances, a duty of confidence based in equity does not apply either, having regard, amongst other things, to the fact that the now defunct Inquiry would not be in a position to sustain an action for breach of confidence.

In relation to correspondence between the Hospital and a pharmaceutical company, the Commissioner considered that, having regard to the context of their creation and their communication to the Inquiry, the records do not contain information having the quality of confidence necessary in order that an action for a breach of the equitable duty of confidence should succeed. She also found that the information was not imparted in circumstances imposing an obligation of confidence and that use by the Hospital could not be regarded as unauthorised. Describing the records at issue as communications between the Hospital and companies with which it had arrangements relating to its work, she noted that, with one limited exception, the correspondence did not relate to individual patients or their next of kin. She expressed the view that, as a general proposition, section 26 is not intended to protect the interests of public bodies and found that these records did not qualify for exemption under section 26(1)(b).

In dealing with the section 26(1)(a) exemption in the context of information given by the Inquiry to the Hospital, the Commissioner considered that neither party could reasonably have an understanding or expectation that correspondence between them would remain confidential. Much of the Inquiry's correspondence related to procedural or administrative matters and the conclusion was that, even if some of the information had the necessary quality of confidence, the second and third requirement of section 26(1)(a) could not be met. Similarly, the Commissioner found that section 26(1)(a) did not apply to the records received from a pharmaceutical company.

Regarding the other exemptions invoked by the Hospital, the Commissioner found that sections 20(1), 21(1)(a), 21(1)(c) and 23(1)(a)(iv) did not apply in this case. She commented that were it necessary to apply the public interest test provided for at section 20(3), given the content of the records, the passage of time since their creation, the fact that the Inquiry has concluded and the very substantial public interest served by transparency in relation to how public bodies conduct their business on behalf of the public, she would find that the public interest would, on balance, be better served by granting the FOI request.

Although it was not accepted that all of the records are privileged as argued by the Hospital, the Commissioner held that a small number of records would attract legal professional privilege and, therefore, are exempt in accordance with section 22(1)(a).

In examining the records under section 21(1)(b), the Commissioner decided that, with one exception, it was not reasonable to expect significant adverse effect on the performance by the Hospital of its management functions if the records were released. She held that parts of one record should be withheld on the basis that the harm envisaged by section 21(1)(b) to the Hospital's functions relating to the management of its staff was likely to occur if the content was released. However, it is not possible for the decision to expand upon the reasons for this finding since section 43 requires that all reasonable precautions be taken to prevent disclosure of information contained in an exempt record.

The Commissioner also directed that where the possibility arose that individual patients or next of kin could be identified from dates or other information, such information be withheld from the copy of the records to be released. In applying section 28(1) to such information, the Commissioner had regard to the fact that the requesters had stated that they did not wish to have access to individuals' medical records and that she could find no public interest in the requesters having access to the personal information of individuals which outweighs the public interest that the right to privacy of those individuals be upheld.

The Commissioner decided that in the very specific context of this case, copies of published articles and other publicly available material included by the Hospital in its submissions to the Inquiry had a separate identity to copies available elsewhere. Among the considerations was the fact that a schedule identifying the records had not been provided by the Hospital to the requester at any stage. It is generally contrary to the spirit of the FOI Act to refuse to release records without giving a description of what is being refused so that the requester would be in a position to seek the publicly available material elsewhere. Mindful of the question of whether the giving of access to copies of the records might involve an infringement of copyright (section 12(2)(b)(ii)), the Commissioner decided to grant access in a form or manner to be agreed or decided in accordance with section 12(3)(b).

In this case the Commissioner found it necessary to set out in some detail the difficulties encountered in obtaining from the Hospital the information necessary to conduct the review and to comment on the attitude adopted by the Hospital and its legal advisers towards her Office.

The Commissioner varied the decision of the Hospital and directed that all except seven of the records together with some records found to be outside of the scope of the request be released.

Date of Decision: 18.04.2005

Our Reference: 030830

18.04.2005

Mr. Raymond Bradley

Dear Mr. Bradley

I refer to your application to this Office under the Freedom of Information (FOI) Act, 1997 for a review of the decision of the National Maternity Hospital (the Hospital) on your request dated 9 December 2002 on behalf of your clients Parents for Justice. I apologise for the long delay which has occurred in bringing this review to a conclusion.

My consideration of the case was well advanced some weeks ago when it was announced that the Inquiry, to which the records relate, would cease to exist on 31 March 2005. Where, in the course of a review, additional facts come to light or where there is a change in circumstances relevant to the review, it is my practice is to take these into account for the purposes of completing the review. This means that, for reasons which will become clear in the course of my consideration of the matter below, I consider that I must have regard to the current status of the Inquiry.

Background

The Minister for Health and Children announced, in April 2000, the setting up of an Inquiry "to review post mortem examination policy, practice and procedure in the State since 1970". The terms of reference of the overall Inquiry envisaged its work being conducted in two phases with the first phase being conducted by Senior Counsel, Ms. Anne Dunne, and the second phase consisting of the report by Ms. Dunne being referred to the Oireachtas Joint Committee on Health and Children.

In your request to the Hospital of 9 December 2002 you sought access to: "1. Copies of any formal submission delivered or intended to be delivered by your Hospital to the Post Mortem Inquiry, otherwise known as the Dunne Inquiry. 2. Copies of all correspondence between your Hospital and the said Inquiry. 3. Copies of all correspondence between your Hospital and the Department of Health pertaining to the said Inquiry. 4. Copies of all correspondence between your Hospital and other relevant parties pertaining to the said Dunne Inquiry."

I note that similar requests were made by you to other hospitals and to former health boards and that a number of these decisions are the subject of separate applications for review to my Office.

The initial decision of the Hospital, dated 23 December 2002, was to refuse your request. The grounds for refusal stated were that all of the correspondence involved in the response to the Inquiry, including the preparation for it, was exchanged in confidence and on the understanding that it would be treated as confidential [sections 26(1)(a) and 26(1)(b)]; that the records contain matter relating to the deliberative process of the Hospital, the release of which would be contrary to the public interest [section 20]; that release of the records would prejudice the effectiveness of inquiries conducted by or on behalf of the Hospital, would prejudice the Hospital's performance of its management functions and would disclose positions taken for the purposes of negotiations carried on by a public body [sections 21(1)(a), 21(1)(b) and 21(1)(c)]; that the records were protected by legal professional privilege [section 22(1)(a)] and that the grant of access to the records would involve the disclosure of personal information [section 28].

In its internal review decision of 27 January 2003, the Hospital affirmed the initial decision for the reasons given in that decision.

Although the terms of reference envisaged that Ms. Dunne's report would be submitted to the Minister within six months, at the time of commencing my review the Dunne Inquiry report had not been submitted to the Minister. My understanding is that the report submitted to the Tánaiste and Minister for Health and Children by the Inquiry on 31 March 2005 covered the paediatric hospitals primarily. As third parties whose interests might be affected by the outcome of this review, my Office notified the Post Mortem Inquiry (the Inquiry) and the Department of Health and Children.

I have conducted this review of the Hospital's decision in accordance with the provisions of the Freedom of Information (FOI) Act, 1997, as amended by the Freedom of Information (Amendment) Act, 2003. All references in this decision to particular sections of the FOI Act, except where otherwise stated, refer to the FOI Act, 1997 as amended.

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

  • your application for review and correspondence between my Office and yourself in relation to the matter
  • correspondence and communications between my Office and the Hospital/Hospital's solicitors (Beauchamps) including the various submissions, documents and correspondence received by my Office from the Hospital/Hospital's solicitors in connection with this review
  • correspondence between my Office and the Inquiry and between my Office and the Department of Health and Children
  • the announcement by the Chairman of the Inquiry and by the Tánaiste and Minister for Health and Children that the Inquiry ceased to exist on 31 March 2005.

I have also examined the records at issue, copies of which were provided by the Hospital for the purposes of this review.

In your submissions, you suggested that I should use my powers under section 42(5) of the FOI Act to refer questions of law arising in this review to the High Court for determination. Having considered the matter, I did not find it necessary, in this case, to refer any such questions to the High Court.

Scope of Review

In your submission of 26 August 2004, in response to preliminary views put to the parties by Elizabeth Dolan, Investigator, of this Office, you agreed that unless additional categories of records came to light during the course of her investigation, the scope of Item 4 of your request could be confined to records of correspondence with the following "other relevant persons"-

(a) other hospitals
(b) health boards
(c) pharmaceutical companies
(d) professional, expert or staff representative bodies.

No additional class of third parties came to light in the course of this review.

You also agreed that the only "internal" Hospital correspondence within the scope of the request is that forwarded to the Inquiry as part of the Hospital's submissions or in the course of other correspondence. Finally, I understand from your contacts with my Office that your clients are not seeking access to the medical records of identifiable individuals or to correspondence with next of kin of deceased persons.

The records as provided to this Office by the Hospital up to 17 June 2004 were described and scheduled in Ms Dolan's letter to you of that date. An updated version of the schedules, taking account of a small number of additional records since forwarded to my Office by the Hospital, is attached to this decision. Records provided, which have been found to be outside of the scope of your request, are noted as such in the schedules.

While my Office suggested to the Hospital that it might release some records which, in the Investigator's opinion, did not qualify for exemption under the FOI Act, the Hospital decided that it would not release any of the records pending a formal, binding, decision. Accordingly, it is necessary to examine all of the records in this review.

Findings

Preliminary Matters

In its decisions to refuse your request, the Hospital relied upon the exemptions at sections 20, 21(1)(a), 21(1)(b), 21(1)(c), 22(1)(a), 26(1)(a), 26(1)(b) and 28(1) of the FOI Act, 1997. In the course of this review, the Hospital sought also to rely on the exemptions at section 23(1)(a)(iv) and sections 22(1A) - the latter provision having been inserted into the FOI Act, 1997 by the FOI Amendment Act, 2003. Before dealing with the exemptions claimed, I wish to make a number of preliminary points.

Difficulties in obtaining the records

In this case, my Office had to go to some lengths in order to obtain from the Hospital the information necessary to conduct the review. Since our experience in this case is most unusual, I find it necessary to set out in some detail my Office's dealings with the Hospital in this regard.

The main problem encountered was the Hospital's reluctance to accept that the FOI Act entitles me to be provided with the records, the subject of the review. My staff made it clear from the outset that copies of the records were being sought from the Hospital with the sole purpose of enabling me to conduct this review under the FOI Act. It is the practice of this Office, on acceptance of an application for review, to ask the public body concerned to provide copies of the relevant records and these are normally provided within two weeks. In this case, the standard letter requesting the records issued to the Hospital's FOI Officer on 31 July 2003. Solicitors for the Hospital (Beauchamps) then engaged in correspondence with my staff querying my right to see the records and seeking certain assurances as to the manner in which the review would be conducted. It appeared that the Hospital wished to impose certain pre-conditions on my conduct of the review before it would agree to provide the records. Correspondence and telephone contacts between my staff and the Hospital and its representatives continued during August and early September 2003.

On 12 September 2003, the records had still not been provided as requested and my Office wrote to the Master of the Hospital, to the Secretary Manager and to the Hospital's solicitors expressing the hope that the review could be got underway on the basis of our normal arrangements; at the same time, we put the Hospital on notice that staff from this Office would call to the Hospital to review the records required. The letter of 12 September 2003 pointed out that the proposed visit could be made either on the basis of agreement with the Hospital or, alternatively, by way of the exercise by me of my powers under section 37(2) of the FOI Act. This provision allows me or my staff to enter the premises of a public body and to require its staff to furnish information and records as well as to examine and copy the records relevant to my review. The FOI Act provides that failure to comply with the requirements of the Commissioner in the performance of her functions amounts to a criminal offence. My Office has agreed procedures with An Garda Síochána in the event of a failure by the head of a public body, or other person, to comply with a requirement of the Commissioner. In further correspondence, the Hospital again queried and criticised the procedures being adopted by my Office and raised issues such as a claim for legal professional privilege and public interest privilege in relation to the records. Furthermore, the Hospital sought to have its administrative costs in the scheduling and copying of the records met by my Office. This request was refused on the basis that there is no provision in the FOI Act for such payments.

Eventually on 22 September 2003, which was the day prior to the planned visit to the Hospital for the purposes of inspecting them, the records were provided by the Hospital.

Following examination of the records received and of the submissions of the parties, my Investigator formed the view that the Hospital or its legal advisors might hold further records covered by the request. Accordingly, on 28 September 2004, my Office served notice under section 37(1) of the Act requiring the Hospital to confirm, in particular, that all of the correspondence covered by item 4 of the request had been furnished and to produce any outstanding records. In submissions dated 7 October 2004, 15 October 2004 and 22 December 2004, the solicitors provided a number of additional records and stated that they were not aware of any further correspondence between the Hospital and third parties within the scope of item 4 of the request.

It will be clear from the above account that an inordinate amount of resources were spent in pursuing what should have been the routine matter of obtaining copies of the records. In the normal course, my Office is understandably reluctant to invoke its strong statutory powers because to do so might impinge on the very good working relations which we enjoy in our dealings with the vast majority of public bodies. In this case, however, the approach to the review by the Hospital left me with no option but to invoke my powers under section 37 of the FOI Act. While the Hospital's stated position is that its attitude was not obstructive, I have to say that I find it extraordinary that a public body would instruct its legal advisors to deal with my Office in the manner described above. While I would expect a public body to vigorously defend its decisions under the Act, and to make strong arguments to justify withholding of the records in the context of the exemptions applied, I have difficulty in accepting that the approach adopted was necessary in relation to the provision of the records themselves. I fully agree with, and support, the manner in which the staff of my Office dealt with the difficulties encountered and with what I see as an unwarranted adversarial attitude displayed by the Hospital. I intend to comment in more detail at a later date on the issues raised by the attitude and actions of the Hospital in this particular case.

Conduct of the Review

I note that you raised questions about my Office's handling of the review and, in particular, our adherence to the normal practice of not providing you or other parties with copies of submissions received in the course of the review. I consider that your concerns were addressed by my staff in correspondence with you and that the review was conducted fairly with regard to the rights and interests of all relevant persons. I do not propose to revisit the arguments here other than to point out that section 37(6) of the FOI Act provides that the procedures for conducting a review shall be such as the Commissioner considers appropriate in all the circumstances of the case and as informal as is consistent with the performance of my functions. I accept fully that these procedures must meet the standard of fair procedure/constitutional justice and I am satisfied that this standard has been met in the present case.

This case is somewhat untypical in that both the applicant/requester and the public body have chosen to be represented, for the purposes of this review, by their respective solicitors. It may be that both solicitors have mis-understood the nature of the review conducted by my Office under section 34 of the FOI Act and the fact that it is conducted along inquisitorial rather than adversarial lines. Certainly, any attempt to have the review conducted in accordance with those procedures followed by the courts - where proceedings are essentially adversarial - is misguided and unhelpful.

Locus standi of Requester/Status of the Review

As you know, the Hospital takes the view that Parents for Justice Limited has not established that it has standing to make this application for review in circumstances where the original request was made on behalf of the Parents for Justice group which, at that time, had not been incorporated as a limited company. As documentation supplied by you shows, the company was incorporated on 2 January 2003 in advance of the internal review application of 10 January 2003. The Hospital's initial decision was given on 23 December 2003. The initial request was made by you on behalf of Parents for Justice and signed by Ms Fionnuala O'Reilly, chairperson of that group.

The right of appeal to the Commissioner arises in this instance from section 34(1)(a) which provides, inter alia, that the application for review by the Commissioner is dependent on a prior application having been made under section 14 (internal review of decisions). Accordingly, I consider that, for the purposes of the FOI Act, the legal person to whom the decision under section 14 issued is the person who made the application to my Office. I accept also that the Chairperson of the group was identified at all stages in the process and it is clear that, since the making of the initial request, you represent a group of persons affected by post mortem practices.

Having considered the submissions on the matter, I am satisfied that I should proceed with this review on the basis that the application is properly before me.

In a submission received on 11 April 2005 in response to my Office's invitation to comment on the fact that the Inquiry had concluded, the Hospital appears to be making the point that, owing to the return of its submissions by the Inquiry, the status of your request and of this review has been altered. The Hospital contends: "We would submit that the FOI Enquiry is now effectively anulity (sic) given that now, technically, there is no submission made by the Hospital to any enquiry, pending and until some enquiry is continued." Insofar as I understand this argument, I do not accept that it has any merit. It is not in dispute that the records the subject of your FOI request were held by the Hospital when you made your request and, indeed, are held still. Accordingly, you are entitled to have your application for review of the decision determined under the FOI Act and, since you have not withdrawn that application, I am obliged to give a decision.

Justification of decision on review

Section 34(12)(b) of the FOI Act, 1997 provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the public body shows to my satisfaction that the decision was justified. During the course of this review the Hospital made a number of arguments in support of its decision to refuse access to the records concerned. In making its arguments and submissions to my Office, the Hospital has not always been entirely clear in associating the exemption claimed, and the argument in support of that exemption, with a specific record or records. The importance of making arguments by reference to the particular record(s) at issue and to the relevant provisions of the FOI Acts was made clear to the Hospital by my Office. We informed the parties that it was unlikely that "blanket" or "class" exemptions could apply to each and every record regardless of content. In order to address as fully as possible the arguments made by the parties, this decision examines each of the exemptions cited. However, it is important to note that the effect of section 34(12)(b) is that the onus rests on the public body to justify its decision to refuse to grant the request.

Pre-commencement records

I have proceeded on the basis that the Act gives you a potential right of access to all of the records sought under Item 1 of your request (copies of the Hospital's formal submissions to the Inquiry), even though a number of the responses to the Inquiry's queries rely on material which came into existence before the commencement of the Act (21 April 1998). I propose to treat such records as "new" records by virtue of their being an integral part of the submission which was created after the commencement of the Act. I note that the Hospital's decision did not refuse access to any of these records on the basis that they were created before the commencement of the Act; I consider this to be the correct approach. It seems to me that each of the records in the Hospital's submission to the Inquiry is presented, in the particular circumstances of this case, not as "a copy ... of a record" as envisaged in the definition of "record" at section 2 of the Act, but as part of the submission. Thus, I have not found it necessary to ask you to address the exception in section 6(5)(a) of the Act whereby a potential right of access to records created before the commencement of the Act exists if access is "necessary or expedient in order to understand records created after such commencement".

Precautions against disclosure

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 a party to a review contends is contained in an exempt record so as to preserve that party's right of further appeal to the High Court.

I note that, in relation to Ms Dolan's description of the records in the Schedules to her letter of 17 June 2004, you consider that the failure to provide more detailed descriptions of the contents of the records is "an unduly restrictive interpretation" of the Act. You suggest that procedures might be put in place to make information on the content of the records available on a confidential basis, including a legally enforceable guarantee on the part of the requester's solicitors. I consider that the FOI Act does not provide for any such release of records or information by my Office in the course of a review. Indeed, even where the Commissioner makes a decision directing the release of records, it is clear that the giving effect to the decision is a matter for the public body which holds the records and not for my Office. In any event, I consider that the nature and extent of the records at issue have been adequately described for you in the Schedules, subject to section 43 of the Act, to enable you to make submissions by reference to the exemptions claimed. Motivation of requesterYou express concern at the Investigator's opinion that, under the FOI Act, the reasons or motives of the person making the request must not be taken into account. In this regard I would refer you to section 8(4) of the FOI Act which requires decision makers to disregard any reason that the requester gives, and any belief or opinion as to what those reasons are, in deciding whether to grant or refuse a request for access to records. Section 8(4) is prefaced by the phrase "Subject to the provisions of this Act, ..." and I accept that this means that there is not a total bar on having regard to the motivation of the requester in making a request. In particular I accept that, in applying a public interest test, the identity and motivation of the requester may sometimes be of relevance and may, in such instances, be taken into account.

In any event, I accept that in my review I can have regard to the Long Title to the FOI Act and its stated purpose "to enable members of the public to obtain access [to information in the possession of public bodies] to the greatest extent possible consistent with the public interest and the right to privacy". I will certainly have regard to your arguments on the public interest and take them into account when it comes to considering those exemptions relied upon by the Hospital which include a public interest override (sections 20, 21, 26 and 28).

The FOI Amendment Act

The position I have adopted following the enactment of the Freedom of Information (Amendment) Act, 2003 is that all reviews must be carried out on the basis of the legislation current at the time of my decision, irrespective of when the original request or the application for review were made. The basis for this approach is grounded in the High Court judgement of Mr. Justice Ó Caoimh dated 31 July 2001 in the case of the Minister for Education & Science and the Information Commissioner (1999 No. 99 MCA). The case involved records of the Leaving Certificate Examination results for a particular year. In his ruling, Mr. Justice Ó Caoimh stated:

"it is clear that the decision that was to be made by the Information Commissioner in light of the appeals taken to him were to be made in light of the facts and circumstances applying at the date of the review by him and not those facts and circumstances pertaining on the date of the original decision."

He found that there was no bar to section 53 of the Education Act, which came into force on 5 February 1999 (after the decision of the Department), applying to the subsequent decision of the Commissioner which was made on 7 October 1999. In these circumstances, the application of section 53 of the Education Act was found to be retroactive rather than retrospective. The key element in this aspect of Mr. Justice Ó Caoimh's judgement was his conclusion that the approach of the Commissioner did not involve any interference with a vested right as the right to information under FOI (created by section 6 of the FOI Act) does "not vest until a decision has been made"; and in this context it is clear that the "decision" envisaged by Mr. Justice Ó Caoimh includes the decision of the Information Commissioner, as appropriate.

I have considered carefully your detailed legal submissions on this issue. You express the view that the above decision of Mr Justice Ó Caoimh is "a bad precedent" because it is a decision in relation to legislation outside the scope of FOI legislation. You say also that it is your understanding that it had been agreed between the parties to that High Court case that the Commissioner's review was in the nature of a de novo hearing and that, accordingly, this was not part of the ratio decidendi of the Court. I do not dispute that my predecessor approached the appeal on the basis that his decision was based upon the circumstances prevailing at the time of the decision and involved a fresh appraisal of the facts and circumstances of the case. It appears that this approach was also adopted by the Minister for Education and Science in the proceedings. However, this does not take from the fact that, in his judgement, Mr Justice Ó Caoimh accepted that section 34 of the FOI Act should not be "... construed narrowly as involving merely a review of an earlier decision and not involving a rehearing...". My position is that the terms of section 34(2) go beyond a review of the decision whose only outcome would be that I could affirm, vary or annul that decision; section 34(2)(b)(ii) allows me to substitute a new decision as I consider proper. Accordingly, in regard to applying the facts and circumstances current at the date of the review, I consider Mr Justice Ó Caoimh's ruling to be more applicable in the present case than the findings of an earlier High Court judgement (The Minister for Agriculture and Food v the Information Commissioner (2000) 1IR309) which, in your submission, applies.

It would seem that the position of the Hospital (as set out at paragraph 35 of its submission of 30 January 2004) is that the approach outlined above, deriving from the judgement of Mr. Justice Ó Caoimh, is the correct approach.

I will now address each of the exemptions claimed by the Hospital as supporting its decision to refuse your request.

Section 22(1A) and (1B)

Section 17 of the Freedom of Information (Amendment) Act, 2003 inserts two new subsections into section 22(1) as follows:-

"(1A) A head may refuse to grant a request under section 7 if the record concerned relates to the appointment or proposed appointment, or the business or proceedings, of -

......(b) any other tribunal or other body or individual appointed by the Government or a Minister of the Government to inquire into specified matters at least one member or the sole member, of which holds or has held judicial office or is a barrister or a solicitor ...and the request is made at a time when it is proposed to appoint the tribunal, body or individual or at a time when the performance of the functions of the tribunal, body or individual has not been completed.

(1B) Subsection (1A) does not apply to a record in so far as it relates to the general administration of, or of any offices of, a tribunal or other body or an individual specified in that subsection."

I am satisfied that up to 31 March 2005, this discretionary exemption was potentially relevant to the records insofar as they related to the business or proceedings of a body (the Inquiry) appointed by the Minister for Health and Children and chaired by Senior Counsel. I do not consider that any of the records can be said to relate to the general administration of the Inquiry or of its offices. The stated position of the Hospital is that it would have invoked the section 22(1A) exemption had it been available to it and that I should now exercise discretion and apply that exemption thus refusing access to all of the records. Your position, as I understand it, is that even if the option to consider section 22(1A) existed - and I recognise you dispute that this was the case - it would be erroneous for me to exercise discretion in favour of applying section 22(1A) to the records in this case.

It is reasonable to assume that section 22(1A) is designed to protect the interests of a particular tribunal/inquiry. However, as far as the Chairman and sole member of the Inquiry is concerned, the functions of the Inquiry have been completed and it ceased to exist on 31 March 2005. My understanding is that the Tánaiste and Minister for Health and Children also takes this view. My Office put this point to the Hospital by letter of 4 April 2005 and invited it to comment. In its response dated 11 April 2005, the Hospital's solicitors said that "all information publicly available to date indicates that it is the intention of the Minister to appoint another person to complete the enquiry". The Hospital also appeared to argue - though the submission is somewhat unclear - that the possible application of section 22(1A) should not be discounted given its contention "that the enquiry has not, in substance, concluded at all." This argument appears at odds with the Hospital's separate argument - also in its letter of 11 April 2005 - that, as the Inquiry had returned the submission made by the Hospital, your FOI request was a nullity as "there is no submission made by the hospital to any enquiry ...".

I take the view that section 22(1A) is potentially relevant only in circumstances where, at the time of the making of the decision (inclusive of my review decision), the performance of the functions of the tribunal, body or individual has not been completed. I consider that the possibility of a "new" Inquiry being set up is an entirely separate matter and I have no knowledge of proposals in that regard. I am satisfied that at this time the "Dunne" Inquiry has concluded and that no other tribunal or other body or individual has been appointed to enquire into the matters the subject of the records. I note also that section 22(1A) specifies that the tribunal, body or individual to which the exemption relates must have as a member a person who holds or has held judicial office or is a barrister or a solicitor. I take this to mean that the exemption is not potentially relevant until the members of any inquiry have been selected and their names announced. In these circumstances, I do not think that the section 22(1A) exemption has any application to this case and I do not find it necessary to examine it further in my decision.

Section 22(1)(a) - Legal Professional Privilege

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".

Legal professional privilege enables the client maintain the confidentiality of two types of communication: confidential communications made between the client and his/her legal adviser for the purpose of obtaining and/or giving legal advice, and 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.

I do not accept the Hospital's view that all of the records would attract legal professional privilege and that, therefore, access to the entire documentation should be refused pursuant to section 22(1)(a). Clearly, many of the records contain neither confidential legal advice nor communications created with the dominant purpose of preparation for litigation. Neither do I accept your contention that it is incumbent on me to seek submissions in relation to each and every record, in respect of which legal professional privilege is claimed, before I determine whether the record is privileged or not. I consider that my examination of the content of each record, together with consideration of the authorities on the legal concept of privilege and the submissions of the parties, is sufficient to enable me to conclude whether or not the exemption applies.

I would refer to the case of Smurfit Paribas Bank Ltd. v. AAB Export Finance Ltd. [1990] ILRM, 58. In this case, the Supreme Court distinguished between correspondence relating to legal advice and correspondence relating to legal assistance between client and solicitor. The Supreme Court held that any communication made to a lawyer for the purpose of obtaining legal assistance rather than legal advice would not be privileged and must be disclosed. On this basis, it is my opinion that any correspondence which is of an administrative nature, and does not involve the seeking or giving of legal advice, is not privileged. Neither do I accept that the dominant purpose in creating these records was the Hospital's preparation for litigation. Clearly, the records were prepared in connection with the investigations being carried out by the Inquiry and for the purpose of the Hospital's engagement with that process. Among the records which, on the face of them, contain confidential legal advice are records where the legal advice was given not directly to the Hospital but to other public bodies. I am advised that privilege normally attaches to the client. In Case No. 98058 (Mr Phelim McAleer and the Minister for Justice, Equality and Law Reform - see www.oic.ie), my predecessor dealt with the question of whether privilege extends to records held by a public body where the body is not the client of the legal advisor. It seems to me that from the findings in that case, and from consideration of the authorities referred to in that decision on waiver of privilege, that privilege has not been waived in this case by the passing, for a restricted purpose, of legal advice from other public bodies to the Hospital. Therefore, I am prepared to accept that the Hospital would succeed in withholding such records on the grounds of legal professional privilege.

I consider that the following records qualify for exemption under section 22(1)(a) in that they would attract legal professional privilege:

Schedule 4

Enclosure to record 4.2, part of 4.4, 4.17, 4.18.

Section 22(1)(b) - contempt of court

Section 22 (1)(b), as amended, exempts records in situations where the decision maker knows, or ought reasonably to have known, that their disclosure would constitute contempt of court. Although it was not relied upon in the original decisions, my Office enquired of the Hospital and of yourselves whether the exemption at section 22(1)(b) was of relevance i.e. if any of the records under review have been the subject of an undertaking to a court by way of discovery or otherwise. As none of the records under review were identified as being subject to such an undertaking, I do not find it necessary to deal further with this issue.

Section 26 - Information given in Confidence

It is necessary to consider section 26 in some detail since it is clear from the submissions of all parties that they regard the issue of confidentiality in relation to these records as a matter of key importance in this review. At this point, also, it is appropriate to note that the Hospital (in common with other hospitals and health boards) signed a confidentiality agreement with the Inquiry which covered information and documentation exchanged between the Hospital and the Inquiry.

Before looking at the application of the section 26 exemption, it is necessary to apply section 26(2) to the records because the exemption does not apply where the records fall within section 26(2).

Section 26(2) states:

"(2) Subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, a public body or a person who is providing a service for a public body under a contract for services) in the course of the performance of his or her functions unless 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 or a person who is providing or provided a service for a public body under a contract for services."

Record prepared by a head, director, member of staff, or person who is providing a service under a contract for services My Office drew the Hospital's attention to the provisions of section 26(2) and expressed the view that, with the exception of correspondence from the Inquiry itself and any correspondence from a third party which is not a public body, the records were prepared for the Inquiry as part of the performance of the normal duties and functions of Hospital staff. In response, the Hospital argued that the preparation of documentation for the Inquiry neither was nor is part of the performance of normal duties of its staff. It further argued that the submissions were prepared by its legal advisors on foot of instructions and that additional staff were brought in to assist in dealing with this "exceptional one -off event".

The Hospital has not brought to my attention any unusual circumstances whereby persons involved in the preparation of submissions to the Inquiry or related work were providing services to it other than as staff members or under a contract for services nor has it identified which "external" persons other than its legal advisors were involved. In the circumstances, I consider it reasonable to assume, having examined the contents of the records, that those prepared by or on behalf of the Hospital were prepared by its staff and/or by its legal team or others who were providing a service for the Hospital under a contract for services. The Hospital mentions information supplied by "independent consultants" but it does not say that any of the records were actually prepared by such consultants nor does it identify such records in its submissions in relation to confidentiality. In any event, the involvement of any such consultants would be likely to be on the basis of a contract for services.

Record prepared in the course of the performance of his/her functions I have also considered whether the records were prepared in the course of the performance of the functions of the staff concerned or those providing a service under a contract for services. While I accept that involvement in the Inquiry process would not be part of the routine work of many Hospital staff, I am satisfied that one of the functions of staff, especially senior staff and those providing advice or assistance under a contract for services, is to represent the Hospital's position when engaging with Government, public bodies, the courts, tribunals, inquiries or other agencies concerned with matters relating to the business of the Hospital. The situation might well be different if an individual staff member and his or her legal team were involved in the preparation of these records in circumstances such as those described in my findings in Case No. 00528 - Mr John Burns and the North Eastern Health Board. In that case I found that certain records, containing the input of an individual doctor and his legal team into settlement agreements between the doctor and his employer, could not be regarded as having been prepared by him as a member of staff in the course of the performance of his duties. However, in the current case, the Hospital has not identified any records which were prepared by staff acting in a personal capacity outside of, or separate to, the performance of their functions as members of staff of the Hospital.

Accordingly, I consider that the records were prepared either by the staff of the Hospital or by its legal team in the course of the performance of their functions.

Unless disclosure would constitute a breach of a duty owed to a personotherthan a public body etc. My Office put it to the Hospital that any duty of confidence in this case, should it exist, would be owed to the Inquiry itself except in the case of records involving third parties who are neither on the staff of, nor providing services to, a public body. In response, the Hospital expressed the view that it owed a duty of confidence to its consultants and its patients as well as to the Inquiry. It seems to me that since its consultants are either on the staff of the Hospital or are employed on a contract for services, the duty of confidence, if it exists, cannot, under section 26(2) be owed to the consultants.

In relation to its patients, the Hospital has not, in dealing with the confidence issue, brought to my attention any specific information in the records the disclosure of which would breach a duty of confidence owed to a patient. Indeed, the medical records of identifiable individuals are outside the scope of the review as agreed with yourself representing the requester. This means that if any of the records contained information which would enable an individual patient or next of kin to be identified, that record or part of record will not be considered for release. I accept the Hospital's position that patient confidentiality, and the requirement for patients' consent to release medical records, is important to it both in the context of the Inquiry and in the wider context. I agree that patients and their next of kin would potentially be a class of persons in respect of whom disclosure of information might constitute a breach of a duty of confidence. However, I can only apply the relevant exemptions to actual records and in this case where it would appear that records contain references to potentially identifiable individuals, I intend to direct that such references be removed from any records that I find not to be exempt under the Act.

In summary, I find that in order for section 26(1) to apply, any duty of confidence which may be owed by the Hospital, in respect of records which it has prepared, must be owed to a person other than a public body or a member of its staff or a person providing a service for it under a contract for services.

Section 26(1)(b)

This provides that " [s]ubject to the provisions of this section, a head shall refuse to grant a request under section 7 if ...(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment ... or otherwise by law."

Given that section 26(1)(a) applies only to information given to a public body, section 26(1)(b) would appear to be the provision most relevant to the majority of the records, being records given by the Hospital to the Inquiry. What follows refers primarily to records created by or on behalf of the Hospital as opposed to records held by it but created by third parties. I address the latter category later in this decision. It is important to note that this exemption applies only where disclosure of information would constitute a breach of a duty of confidence. For there to be a breach of a duty of confidence, one would expect to be able to identify a person in respect of whom the breach has occurred and who, as a consequence, would be in a position to sustain an action for breach of that duty. I take the view that section 26(1)(b) operates to protect the interests of the party to whom the duty of confidence is owed by the public body, the subject of the FOI request.

The overall scheme of the FOI Act suggests that, as a general proposition, section 26 is not intended to protect the confidentiality interests of public bodies. My decision in Case No. 000528 (Mr John Burns and the North Eastern Health Board - see www.oic.ie) identifies the various exemptions in the FOI Act, and the interests which they were designed to protect, in support of the view that the protection of section 26 is directed at entities other than public bodies; or, at least, the provision will protect the interests of a public body only where those interests co-incide with other interests which require to be protected. Accordingly, I now deal with section 26(1)(b) primarily in terms of the Hospital's relationship with the Inquiry. For the purposes of this aspect of the review, it must be established that a duty of confidence exists vis à vis the Inquiry or its sole member or other third party and, if so, that the disclosure of the records by the Hospital, would, in the circumstances of this case, amount to a breach of such a duty of confidence.

Confidentiality Agreement

Apart from the personal information of those involved, such as next of kin of deceased persons (which is not within the scope of this review), I consider that it is chiefly the interests of the Inquiry and its investigative process that the undertaking on confidentiality was designed to protect. I accept that, as a non-statutory Inquiry conducting its proceedings in private, the Inquiry had to decide how best to conduct its investigations within its terms of reference. It is clear from the Memorandum on Procedures drawn up by the Inquiry, and from the Chairman's Progress Reports on the work of the Inquiry published in October and November 2002, that the signing of the undertaking and the expectation of confidence was given considerable importance by the Inquiry.

While it was still in operation, the Inquiry stated that confidentiality was essential to its obtaining co-operation from hospitals and others; that disclosure of the records would lead to an erosion of this level of co-operation and that this would be detrimental to the Inquiry. Given that it has now ceased to exist and that its Chairman has confirmed the cessation in notices in the national press, it is difficult to see how, at this point in time, this level of protection of its work continues to be necessary.

I do not believe that the effect of the confidentiality agreement was intended to be open ended or permanent. Indeed, in its submission to my Office, the Inquiry itself envisaged that at least some of the records in question might fall to be released at a later stage. Given that the Inquiry has ceased to exist, I find that the undertakings given to it no longer have any force in relation to the records, the subject of my review. Notwithstanding this, in order to respond to some of the points made by the parties about confidentiality agreements in the context of this case, I include some brief comments on the issue. You make the point that if, as a matter of public policy, a non-statutory inquiry can use a confidentiality agreement to "prevent" a public body from releasing records under FOI, this would have serious detrimental consequences for the FOI legislation. In my decision in the case of Mr John Burns and the North Eastern Health Board (Case No. 000528 referred to above), I set out my views on confidentiality agreements in an era of Freedom of Information. In recording some concerns about the use of confidentiality clauses by public bodies, I expressed the belief that, since the advent of FOI, some restrictions are imposed on the use of such confidentiality clauses. Although my finding in the present case is that the confidentiality agreement is no longer in force, I am satisfied that the use of the undertaking as to confidentiality was initiated as part of the Inquiry's procedures and that there is no question of the intent of the agreement being to circumvent the FOI Act. If I were to be satisfied that a public body had entered into an undertaking or guarantee of confidentiality with the deliberate purpose of circumventing the FOI Act and ousting its jurisdiction, this would represent a very significant issue in the consideration of whether the information ought to be released in the public interest. As I found in the decision cited above, each case has to be considered on its own facts and circumstances and any confidentiality agreements entered into by public bodies are subject to the implied terms which arise from the FOI Act. It seems to me that in the present case the process, which the confidentiality agreement was intended to protect, is at an end; thus, the records fall to be considered under the FOI Act without reference to the provisions of the agreement.

The duty of confidence potentially protected by section 26(1)(b) includes not just confidence based on an agreement or enactment but also a duty of confidence provided for "otherwise by law"; this latter category, it is generally accepted, includes a duty of confidence arising in equity. However in the circumstances of this case, where the entity to which a duty of confidence might be owed no longer exists, and where I have already found that the written confidentiality agreement no longer applies, I find that a duty of confidence based on equity does not apply. This finding takes account, amongst other things, of the fact that the now defunct Inquiry would not be in a position to sustain an action for breach of confidence.

In summary, I have concluded (a) that as far as records prepared by or on behalf of the Hospital are concerned, the exemption at section 26(1) can only apply where a duty of confidence is owed to a person other than a public body or a staff member of a public body or a person providing a service for it under a contract for services and (b) that an action for a breach of any duty of confidence (should it exist) cannot be taken by the Inquiry or its sole member since the Inquiry no longer exists. These conclusions relate in particular to the records identified in Schedules 1 and 2 which are the records of the Hospital's submission to the Inquiry along with the records of other correspondence between the Hospital and the Inquiry. With the possible exception of record 1.19 from Schedule 1 - with which I deal below in the context of "Third Party Records" - I find that none of the records identified in Schedules 1 and 2 are exempt by reference to section 26(1) of the FOI Act.

Publicly Available Records

I have considered the question of whether records which are available to the public for inspection or purchase (for example, annual reports and published articles) are covered by the FOI Act given section 46(2) which excludes from the scope of the FOI Act records which are available to the public for inspection or for purchase or "removal free of charge". However, I note that you have confirmed that your client wishes to have this type of record included in this review.

I consider the fact that the Hospital included copies of such records in its submission to the Inquiry means that they are records within the scope of your request and gives them a separate identity from copies which could be obtained elsewhere. My Office invited the views of the Hospital on this matter and asked whether it could make such records available to you or at least identify them for you. I believe that it is generally contrary to the spirit of the FOI Act to refuse to release records without giving the requester a description of what is being refused. In this case, the Hospital's decisions did not inform you of the titles or other details of these records. Therefore, you would not have been in a position to seek them elsewhere without this knowledge.

In response to a query from my Office, the Hospital said that, while its Annual Reports are published and are publicly available, its Clinical and Executive Committee Reports are not. Given that the records were prepared by the staff of the Hospital, section 26(2) applies to them and they cannot be exempt under section 26(1) unless there can be identified a person who could sustain an action for breach of confidence as a result of disclosure of the information concerned. In relation to the Clinical Reports, these are essentially annual summaries of the work of the Hospital and its various departments; their content is a mixture of factual and statistical information together with commentary by Hospital staff. It is my understanding that, while it may be possible for members of the public to gain access for research or other purposes to the Clinical Reports for certain years or to extracts thereof, the reports for the relevant years (1970-2000) are not generally available for inspection or purchase at this point in time. Why this should be the case, is not clear to me. In any event, I am prepared to accept that the Clinical Reports included in the Hospital's submissions to the Inquiry are not publicly available at present. Accordingly, I have included the Clinical and Executive Committee reports among the records listed above to which the section 26(1) exemption does not apply. What follows in relation to the published records does not apply to these reports. In the very specific context of this case, I find that that the FOI Act applies to the published and otherwise publicly available records identified in the Schedules to this decision and that they are not exempt under section 26(1)(b) or otherwise excluded from the scope of the Act. I consider that the Hospital should grant access to them. However section 12(2)(b)(ii) of the FOI Act, which has to do with the protection of copyright, may apply to many of these records. Section 12(3)(b) provides that

"Where a head decides to grant a request under section 7 but not to give access to the record concerned in the form or manner specified in the request, he or she shall give such access ...(b) if the case is one to which paragraph (b) of that subsection applies, in such other form or manner specified in or determined under subsection (1) as may be agreed by the head and the requester or, if those persons are unable to agree upon such a form, in such form specified in subsection (1) as the head considers appropriate."

In the present context I take this to mean that, where the records comprise published material, it would not be necessary for the Hospital to provide you with photocopies of each record if it was, instead, to give you a list describing the published items and providing the references necessary to enable you to locate these records. I consider that this solution would have the added advantage of avoiding any question of a breach of copyright. The records concerned are identified in the schedules attached to my decision.

Third Party Records

You will be aware from the schedules (compiled by my Office) that records are also held by the Hospital of its correspondence with the Department of Health and Children (Request Item 3) and with "other relevant parties pertaining to the Dunne Inquiry" (Request Item 4).

In addition to the correspondence in Schedule 3 and Schedule 4, where I have found information concerning parties other than the Hospital and the Inquiry included in the records sent to the Inquiry with the Hospital's submissions, I have considered whether its disclosure might constitute a breach of a duty of confidence owed to these persons.

Correspondence with the Department of Health and Children (the Department) The Hospital has informed my Office that it can find no records of correspondence with the Department pertaining to the Inquiry other than the two records identified in Schedule 3. It is the case that, since both records were created by a public body and sent to another public body, the provisions of section 26(2) would apply, as explained above. In any event, it is my view that the content and nature of the correspondence could not be held to be confidential. Accordingly, it is my finding that records 3.1 and 3.2 are not exempt under section 26 of the Act.

It is remarkable that the two records in this category consist of letters from the Hospital to the Department and that the records provided by the Hospital do not include any reply from the Department. Given the content of the Hospital's letters to the Department, one would certainly expect the Department to have replied. However, as detailed elsewhere in this decision, the Hospital has given my Office an assurance that it holds no further records of relevance to your client's FOI request.

Correspondence with the Eastern Regional Health Authority (ERHA)Ms Dolan of my Office identified these records and described them in the schedules to her letter of 17 June 2004. I note that in your submissions you made no comment on these records nor did the Hospital address them in terms of the exemptions which might apply. Ms Dolan drew attention to certain parts of these records which, she considered, do not come within the scope of your request. I agree that portions of the records identified in Schedule 4 do not pertain to the Inquiry but to a separate project, in which the Hospital and other public bodies engaged with the ERHA, and to other matters. Accordingly, my findings in this regard are restricted to those parts of the records set out in Schedule 4 as coming within the scope of this review.

Section 13(1) of the FOI Act provides for the editing of a record with the deletion of material which is exempt from release while retaining material which is not exempt from release. This approach is subject to the requirement that the edited record, intended to be released, is not misleading. Although I am generally not in favour of the "carving up" of records in order to release occasional sentences, I am satisfied that, in the case of minutes of meetings where items pertaining to the Inquiry are recorded separately from other business, it is feasible to consider the relevant extracts for release in compliance with section 13(1) of the Act.

As explained above, section 26(2) of the FOI Act operates to prevent the section 26(1) exemption from applying to these records which were prepared by a public body and which concern other public bodies. You will note, however, that parts of records 4.2 and 4.4 involving the ERHA are among the records which I have identified as qualifying for legal professional privilege in my findings on section 22(1)(a) earlier in this decision.

Correspondence with Others In the course of the review my Office noticed, in correspondence forming part of the Hospital's response to the Inquiry's queries, a reference to a letter which was not among the records forwarded to my Office. The correspondence related to contact with pharmaceutical companies and did not appear to have been included in either the category of records covering the Hospital's response to the Inquiry or the category of records covering correspondence with other relevant parties. As a consequence, my Office required the Hospital to comply with a notice under section 37 of the FOI Act to produce that particular record and any others within the scope of the request which had not already been provided. The Hospital was also required to confirm that no additional records of contacts with pharmaceutical companies or other third parties were held. In response, the Hospital submitted copies of correspondence with pharmaceutical companies and with the legal advisors of some other participants in the Inquiry. In regard to the latter, the Hospital notified my Office that it was providing this correspondence under protest and claiming privilege in respect of it.

I have included in Schedule 4 the additional records received from the Hospital on 7 October 2004, 15 October 2004 and 22 December 2004 which are now numbered 4.10 - 4.25. Where, on examination, the additional records were found to be duplicates of copies which my Office had already received, and which had been included in the "Item 1" records comprising the Hospital's submissions to the Inquiry already listed in Schedule 1, they have been excluded from Schedule 4. Records 4.10, 4.11 and 4.12 are records of correspondence between the Hospital and pharmaceutical companies in connection with the Hospital's preparation for, and submissions to, the Inquiry. Correspondence in this category is also included at 1.19 of Schedule 1. I examine these separately below.

Records 4.13 and 4.14 comprise correspondence between the then solicitors for Parents for Justice and the Hospital. As there can be no issue here as to safeguarding the confidentiality of the client (the requesters in this case), I am satisfied that section 26(1) of the Act does not apply to exempt these two records from release. Given that release under the FOI Act is "release to the world at large", I have given consideration to whether these records contain any personal information relating to an individual which might potentially exempt them from release; I find that they do not.

Records 4.15 and 4.16 are letters from solicitors for participants (another public body) in the Inquiry to the Hospital's solicitors. They pertain to the Inquiry insofar as they are headed "Post Mortem Inquiry". However, I consider that the content relates to a factual matter which is in the public domain and that no legal advice is conveyed. The purpose of the communication would appear to be to provide information rather than any confidential matter relevant to the Inquiry's work or to the submissions of the Hospital. In any event, I am satisfied that these records were prepared on behalf of a public body, that section 26(2) applies and that the information in them is not exempt under section 26(1).

Records 4.17 and 4.18 are records of correspondence between the legal advisors to other participants in the Inquiry and solicitors for the Hospital. In relation to these two records, the question of legal professional privilege arises and I have already found these records to be exempt under section 22(1)(a).

Records 4.19 to 4.25 are outside the scope of my review since they were not held by the Hospital at the time that you made your FOI request.

Correspondence with Pharmaceutical Companies - records 1.19 (4 pages with enclosures), 4.10, 4.11, 4.12 Essentially, these are the only records which involve parties other than the Hospital, the Inquiry and other public bodies. The records comprise both correspondence to the companies from the Hospital and to the Hospital from the companies. Lest my reference to the plural mislead you as to the number of companies, it appears that only one company is involved in the substantive correspondence; the other is stated to be an agent of that company. It is clear that these records were created for the purpose of responding to requests for information made by the Inquiry and I have already concluded that a duty of confidence can no longer be owed by the Hospital to the Inquiry. The question I must now address is whether the Hospital owes a duty of confidence to the companies involved.

Duty of Confidence In the case of Mr. Michael Grange and the Department of Enterprise, Trade and Employment (Case No. 98179 at www.oic.ie), my predecessor adopted the following definition of the term "confidence", which is derived from the law relating to breach of duty of confidence: "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." ("B" v. Brisbane North Regional Health Authority, (1994) 1 QAR 279, at paragraph 45, quoting from F. Gurry "Breach of Confidence" in P. Finn (Ed.) Essays in Equity; Law Book Company, 1985, p.111). I adopt this definition for the purposes of this review.

In responding to my Investigator's preliminary views of 17 June 2004, you state that information provided to the Inquiry by the Hospital cannot be categorised as "secret" merely because it is neither common knowledge nor trivial. I am aware, as you say, that much of the case law in this area relates to cases involving trade secrets or other financial type information. However, it is clearly envisaged in section 26 of the Act that some material held by public bodies will have the quality of confidence about it where the information held relates to matters outside of trade or finance. By way of example, there is provision at section 27 of the FOI Act for a specific exemption in relation to records involving commercially sensitive information, including trade secrets.

In examining these records in the context of section 26(1)(b), in the absence of a contract or agreement between the Hospital and the companies, I must determine whether there is a duty of confidence based on equity ("or otherwise by law"). In order that an action for a breach of an equitable duty of confidence should succeed, three elements are normally required: (1) that the information has the necessary quality of confidence; (2) that it is imparted in circumstances imposing an obligation of confidence; (3) that there is unauthorised use to the detriment of the party communicating it (per Megarry J. in Coco v. A.N. Clarke Engineering Limited [1969] F.S.R.415).

As I understand it, the Hospital's response generally to the points raised by my Office about the quality of confidence in the records is that, where there are routine communications relating to secret information, the former should be treated as exempt as should material within the public domain which has been "personalised" for use by a public body. I accept that it is sometimes the case that information is made up of elements which could be held to be common knowledge but that the combination of these elements, brought about by the confider's "skill and labour" is enough to give the information the necessary quality of confidence (per dicta of Costello J. in House of Spring Gardens v. Point Blank Ltd [1984] I.R. 611). However, I believe a decision as to whether a particular record has the necessary quality of confidence about it can only be taken by reference to its content and purpose. In this regard I note that my Investigator put it to the Hospital that, in her view, since the Inquiry has ceased to exist, the records in respect of which a duty of confidence might have been owed to the Inquiry would not now qualify for exemption under section 26. In response, the Hospital stated that it disagreed with this interpretation of the duty of confidence and relied on its previous submissions; it made no reference to these particular records containing information concerning third parties, which are not public bodies, nor on whether their content has the necessary quality of confidence.

I consider, having examined the records at issue and having regard to the context of their creation and their communication to the Inquiry, that they do not contain information having the necessary quality of confidence as defined above. Much of the correspondence refers to matter which is already in the public domain. For instance, press releases from hospitals and pharmaceutical companies together with media reports in 2004 made references to the supply of pituitary glands by Irish hospitals (including the National Maternity Hospital) to the pharmaceutical industry for use in the treatment of growth hormone deficiency. I am satisfied that, whilst such records were prepared and received on the understanding that the communication was for the purpose of furnishing information to the Inquiry for the purposes of its investigation into post mortem practices, neither party could have expected that their communications would remain confidential.

I refer to my earlier observations in the context of section 26(1)(b) where I expressed the view that, as a general proposition, section 26 is not intended to protect the interests of public bodies. What is involved here is communication between the Hospital and companies with whom it had arrangements relating to its work. The content of the correspondence relates to the establishment of the facts about those arrangements and does not extend to opinion or speculation. Whilst a request by the letter writer that the content be kept confidential is no guarantee that the information has the necessary quality of confidence, or that confidentiality will be upheld under FOI, I note in this case that the companies involved did not request that their responses to the Hospital would be treated as "Private and Confidential". With one exception, discussed later in my decision in the context of section 28 of the FOI Act, the information does not relate in any potentially identifiable way to individual patients or their next of kin.

Indeed, the content of these records is, for the most part, no more than a confirmation, for the benefit of the Hospital (whose records seemed deficient) of the nature of the relationship which had existed between the Hospital and the pharmaceutical companies. It is not tenable that the provision of this information, consisting mainly of what the Hospital must or should have known already, could have been provided in confidence. Neither is it tenable that the Hospital would require authorisation from the companies if it intended to make use of the information; after all, the "information" is as much the information of the Hospital as it is that of the particular companies. In these circumstances, it is difficult to envisage that any use of the information made by the Hospital could be seen as "unauthorised".

In the light of the above, my finding is (a) that these records do not contain information which has the necessary quality of confidence about it; (b) that the information was not imparted in circumstances imposing an obligation of confidence and (c) that use of the information by the Hospital could not be regarded as unauthorised. Accordingly, my finding is that release of these records by the Hospital would not constitute a breach of a duty of confidence and that they are not exempt under section 26(1)(b) of the FOI Act.

In regard to the letter dated 9 July 2002 and enclosures at record 1.19 of Schedule 1, you should note that later in this decision I make findings under section 21 and section 28 in relation to specific parts of these records.

Section 26(1)(a)
I have already found that the section 26(1)(b) exemption does not apply to those "third party records" which were created other than by, or on behalf of, a public body. I now examine these records in the context of section 26(1)(a). The records at issue comprise those identified above which contain information given to the Hospital by the Inquiry and by pharmaceutical companies.

Section 26(1)(a) of the Act provides that a public body shall refuse a request if -
the record contains information given in confidence to a public body on the understanding that it would be treated by it as confidential, and
in the opinion of the public body, 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, and
it is of importance to the public body that such further similar information should continue to be given to it.
However, information given in confidence, and to which section 26(1)(a) applies, must be released if the public interest would on balance be better served by granting than by refusing to grant access to the record.

Information given by the Inquiry
Since the information at issue in this provision must be "given to a public body in confidence...", and the Inquiry is not prescribed as a public body for the purposes of the FOI Acts, this provision is relevant potentially only to information in records provided by the Inquiry or by third parties to the Hospital. The Hospital appears to be arguing that all of the records, irrespective of content, have the necessary quality of confidence by virtue of a mutual expectation of confidence and of the Memorandum on Procedures drawn up by the Chairman of the Inquiry which provided for an undertaking as to confidentiality to be entered into by the participants.

Having regard to my findings above in relation to section 26(1)(b) and the fact that the Inquiry has ceased to exist, I consider that neither the Hospital nor the Chairman and sole member of the Inquiry can reasonably have an understanding or expectation that correspondence sent to the Hospital by the Inquiry would continue to be treated as confidential. Indeed, much of the Inquiry's correspondence relates to procedural or administrative matters, to deadlines, to published items and to other relatively routine matters. Even if I was to find that some of the content had been given in confidence at the time it was conveyed to the Hospital, I consider that the second and third requirements of section 26(1)(a) could not possibly be met at this stage since the supply of information to public bodies from the Inquiry or even from any future similar inquiries could not be prejudiced by the release of records about the conduct of the Inquiry at a time when it had concluded. In other words, any inquiry would have to engage with public bodies insofar as its terms of reference included investigation of their practices.

Information from pharmaceutical companies
In respect of the records which contain information given to the Hospital by pharmaceutical companies, I rely on the reasons given under section 26(1)(b) above and find that the information was not given in confidence to the Hospital. My finding is that the information which I have already found not to have the necessary quality of confidence to qualify for exemption under section 26(1)(b) does not meet the first requirement of section 26(1)(a) either. Further tests to be satisfied in section 26 (1)(a) are that disclosure would be likely to prejudice the companies, or "other persons", from giving further similar information and that it is of importance to the public bodies to receive such information. It seems to me that the companies involved, or "other persons" holding similar information, would be anxious to clarify or explain their past role in issues relating to post mortem procedures if for no other reason than to prevent any perceived damage to their reputations. However, having found that these records do not meet the first requirement of Section 26(1)(a), it is not necessary for me to apply the remaining tests. Thus, I find that these records are not exempt under section 26(1)(a) of the FOI Act.

Other exemptions

In its decision, the Hospital cited a number of other exemptions which it appears to have relied upon. Since the exemptions claimed were not linked to any individual record or records in its decisions or in its submissions on this review, I take it that the Hospital's position is that all of the records qualify for the various exemptions which I now address.

Section 20 - deliberations of public bodies
Section 20 of the FOI Act, 1997 (as amended) provides:

"(1) A head may refuse to grant a request under section 7 if the record concerned contains matter relating to the deliberative processes of a public body (including opinions, advice, recommendations and the results of consultations, considered by the body or a member of the body or of the staff of the body for the purposes of those processes)."

The Hospital states in its submissions that it carried out its own deliberative process in the context of its participation in the Inquiry and that, accordingly, it relies on section 20 to exempt such records. It argues that the records relating to the deliberative process of the Hospital are primarily concerned with its policy making process "as they relate to its policies and procedures in relation to post mortems and all matters relating thereto." What I must determine, therefore, is whether the submissions of the Hospital to the Inquiry and the contacts between them and others include matter to which section 20 can be applied. Clearly, section 20 does not cover the deliberations of the Inquiry which is not a public body for FOI purposes.

Deliberative processes involve the consideration of various materials with a view to making a decision on a particular matter. I would expect that a public body relying on this exemption would identify both the deliberative processes it is engaged in and any matter in particular records which relates to these processes. As noted already, the Hospital has not identified specific records as being covered by section 20 nor has it made a case as to why section 20 should apply to any particular records.

I do not believe that records, comprising procedural type correspondence with the Inquiry or with third parties and information already in the public domain, could be held to form part of the deliberative processes of a public body. Furthermore, Section 20(2)(b) of the FOI Act excludes factual information from exemption under section 20(1). Accordingly, much of the Hospital's responses to the Inquiry's queries which comprise statistical, organisational and other factual content are records to which the section 20 exemption cannot apply.

As regards records disclosing the substantive submissions to the Inquiry, I consider that these records relate to positions adopted by the Hospital following its deliberations as opposed to material disclosing the internal thinking process within the Hospital or the weighing up of options. Certain of the records contain accounts of the consideration of issues relating to the Inquiry by participants in meetings chaired by the ERHA; with limited exceptions, I do not find that opinions, advice or recommendations contributing toward the deliberative process are disclosed in these records. The exceptions to this finding are those records containing legal advice which I have already found to be exempt under section 22(1)(a).

The FOI Act clearly envisages that there will be cases in which disclosure of the details of a public body's deliberations - whether before or, in some cases, after a decision based on these deliberations has been made - would be contrary to the public interest. However, that is not to say that such disclosure is always, as a matter of principle, against the public interest. In this case, the Hospital has not satisfied me that the records contain matter relating to the deliberative processes of a public body. Even if I had found that some of the records came within the scope of section 20(1), section 20(3) requires that I consider whether the public interest would, on balance, be better served by granting than by refusing the request. There is a very strong public interest in ensuring the maximum transparency in regard to the manner in which public bodies conduct their business on behalf of the public; this is as true in the sensitive area of the post mortem practices of hospitals as it is in the area of, for example, how local authorities manage their housing responsibilities. In the present case, there is a public interest in enabling the Hospital conduct its business effectively and in allowing it the space to think out its response to the Inquiry. However, once a decision has been made to proceed with a proposed action (in this case the provision by the Hospital of a response to the Inquiry's queries), the need to withhold information on the matter weakens considerably.

Given the content of the records, the passage of time since their creation, the fact that the Inquiry has concluded and the very substantial public interest served by transparency in relation to all of the issues arising, I am satisfied that were it necessary to apply the public interest test provided for at section 20(3), I would find that the public interest would, on balance, be better served by granting than by refusing the FOI request.

Overall, I find that the Hospital has failed to establish a basis for exemption under section 20(1).

Section 21 (1) a),( b), (c) - functions and negotiations of public bodies
All three elements of section 21(1) were relied upon by the Hospital.

Section 21 of the FOI Act provides:
"(1) A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to-
(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof,
(b) have a significant, adverse effect on the performance by a public body of any of its functions relating to management (including industrial relations and management of its staff) or
(c) 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 a public body
(2) 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 request under section 7 concerned. "

I adopt the approach of my predecessor to this exemption and take the view that, in arriving at a decision to claim a section 21 exemption, a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The test of whether the expectation is reasonable is not concerned with the question of probabilities or possibilities. It is concerned simply with whether or not the decision maker's expectation is reasonable.

Section 21(1)(a)
Section 21(1)(a) cannot apply to the Inquiry's own investigations since it is not a public body under the FOI Act. I do not accept that the collating of information by Hospital staff in order to respond to the requests for information and queries posed by the Inquiry would come within the type of "tests, examinations, investigations, inquiries or audits conducted" envisaged by this exemption. I consider that the only records, which relate in any direct way to investigations or inquiries the Hospital or any other public body had to conduct or refer to in order to respond to the Inquiry, are those concerning pharmaceutical companies. Having regard to the content of such records which I have described earlier in the context of section 26, I find it difficult to see how their release would prejudice the effectiveness of any investigations even if these were ongoing. I do not consider that harm to the functions covered by the section 21(1)(a) exemption is likely to occur as a result of the release of the records in this case; nor has the Hospital made any specific case that such harm could reasonably be expected to occur.

Section 21(1)(b)
The standard to be met in applying the test of section 21(1)(b) is relatively high. An expectation of "significant, adverse effect" requires evidence to support the likelihood of serious harm occurring were the records to be released. As I understand it, the Hospital's position is that it would be difficult for it in a management context if "confidential communications" were disclosed without the rights of individual staff being protected. Given my findings earlier in this decision in relation to "confidential information" and the fact that individuals identified in the records are, for the most part, members of the staff of a public body, I am not convinced that it is reasonable to expect the harm envisaged by release of most of the records which only identify persons in the context of their normal duties as staff of the Hospital. I have taken account of the contents of the records at issue and the extent of the information already in the public domain. I accept that release of the records will not be without consequence or effect or may be regarded as resulting in an additional burden from the Hospital's point of view. However, I am not satisfied that it is reasonable to expect that such effect or burden would amount to a significant adverse effect on the Hospital's performance of its functions relating to management. On this basis I am not satisfied, that section 21(1)(b) applies to the records generally.

There is one exception to the above; this comprises parts of some 12 pages of record 1.19 (not including letter dated 9 July 2002) in Schedule 1. I have identified these in the attached schedule. As I have explained above, section 43 prevents me from giving a detailed description of the content or the circumstances of the creation of these records as to do so would disclose information contained in an exempt record. Neither can I expand upon the reasons for my findings as to the applicability of the section 21(1)(b) exemption cited other than to say that I am satisfied that if these parts of record 1.19 were released this would have a significant, adverse effect on the performance by the Hospital of its functions relating to the management of its staff. I have given a more detailed explanation to the Hospital in relation to my finding that these records are exempt. I accept that, in the event of your appealing my decision to the High Court, your ability to make a detailed submission on the matter would be limited. Nevertheless, I would expect in such circumstances that the High Court would be in a position to ensure that your interests are protected in the course of any such proceedings.

Section 21(1)(c)
Although this provision does not contain a harm test, I consider that the exemption cannot apply in the circumstances of this case since neither the Inquiry's investigation, the Hospital's engagement with it or the Hospital's contact with third parties about it can be considered to be "negotiations" carried on, being or to be carried on by or on behalf of the Government or a public body. When this point was put to the Hospital by my Office, it stated that it wished to rely on section 21(1)(c) given the existence of personal injury litigation in relation to post mortem matters. Even if such litigation were to involve negotiations carried on by or on behalf of the Hospital, I am satisfied that the records at issue in this case do not contain indications of 'fall-back' positions, an opening position taken or a position taken with a view to further negotiation.

Having found that section 21(1) does not apply to exempt these records, it is unnecessary to consider the public interest override provided for in section 21(2) except in relation to the records identified above in record 1.19 of Schedule 1. Having considered the matter carefully and having regard to the information in other records which I have directed to be released, I find that the public interest in your having access to certain parts of record 1.19 is outweighed by the public interest in the Hospital being allowed to carry out its functions in relation to management without significant adverse effect.

Section 23(1)(a)(iv) - law enforcement/administration
Section 23(1)(a)(iv) of the FOI Act provides that:

" A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to
(a) prejudice or impair -
(iv) the fairness of (...) civil proceedings in a court or other tribunal"

The Hospital stated in a submission that this was a relevant exemption but did not develop this argument. The context in which this provision tends to be invoked by a public body is one in which a legal action, involving the public body, is pending or contemplated. A public body may seek to withhold relevant documentation on the grounds that a requirement to disclose the detail of its proposed conduct of the case, in the absence of any such requirement in relation to the other party, would be manifestly unfair. Although the Hospital does say that individuals are taking proceedings against it arising from matters relating to post mortem practices, no records have been identified in the context of the "harm" envisaged; nor is it clear to me that any particular legal strategy, the disclosure of which might result in prejudice or unfairness, is evident from the records.

I consider that the argument necessary to sustain a claim that the records are exempt under section 23(1)(a)(iv) has not been made out and I find accordingly.

Section 28 - Personal Information
Section 28(1) of the Act provides that a decision maker shall refuse to grant a request where access to the record would involve the disclosure of personal information (including personal information relating to a deceased individual) relating to persons other than the requester. This exemption is subject to a limited number of exceptions. In the course of the review, you agreed that personal information relating to deceased persons and/or their next of kin did not fall within the scope of your request.

I consider that the majority of the records do not disclose personal information. Accordingly, section 28 does not apply to them. However, in examining the records, I found that a number of sample internal documents provided by the Hospital at Records 1.15 and 1.20 have names blanked out but contain some other details of the circumstances of the case. I consider that there is some possibility that the individuals involved could be identifiable from the dates taken together with other information. Accordingly, I direct that all dates and any names of patients or next of kin in the sample documents be deleted from the copies of the forms and registers in records 1.15 and 1.20 to be released by the Hospital.

Furthermore, in the letter dated 9 July 2002 (record 1.19 of Schedule 1) there are references at page 3 and 4 to specific numbers which could be interpreted as relating to the information of individual patients. For this reason, I direct that the last five lines of page 3 and lines 2- 4 of page 4 of that letter be deleted from the copy to be released by the Hospital.

I make these directions (a) on the basis that you have stated that you do not wish to have access to the medical records of individuals and (b) having regard to the fact that I can find no public interest in your having access to the personal information of individuals which outweighs the public interest that the right to privacy of those individuals should be upheld.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, (as amended), I hereby vary the decision of the Hospital as follows:

  • I annul the decision of the Hospital in relation to the following records and direct that the Hospital release them:

Schedule 1 Records 1(a) and 1(b), 1.1 - 1.14, 1.16 - 1.18, 2.1 - 2.8 in full; records 1.15, 1.19 and 1.20 in part as detailed in the schedule attached

Schedule 2 Records 1 - 33

Schedule 3 Records 3.1 and 3.2

Schedule 4 Records 4.5, 4.10 - 4.16 in full; records 4.1 - 4.4 and 4.6 and 4.9 in part as detailed in the schedule attached.

  • I affirm the decision of the Hospital in relation to the following records and find that they are exempt under the Act -

Schedule 1 Records 1.15, 1.19 and 1.20 in part as detailed in the schedule attached

Schedule 4 Records 4.17 and 4.18 in full and records 4.2 and 4.4 in part as detailed in the schedule attached.

The attached schedules summarise my findings.

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 that decision. Such an appeal must be initiated not later than eight weeks from the date of this letter.

In accordance with section 34(13) of the Freedom of Information Act, I specify that effect shall be given by the Hospital to my decision in this case as soon as may be and not later than a period of ten working days following the expiration of the time for the bringing of an appeal to the High Court from the decision.

Yours sincerely

 

Emily O'Reilly
Information Commissioner