Case number: 080143
The Senior Investigator found that the HSE is not justified in its refusal of access to certain records but is justified in its refusal of one record. She varied the decision of the HSE by directing the release of letters of complaint concerning the Applicant and her family with the exception of personal information of third parties. She affirmed the decision of the HSE to refuse access to a letter sent to Professor Brendan Drumm by a consultant in March 2007 on the basis that it was exempt under section 21 of the FOI Act. She also found that parts of the record would qualify for exemption under section 28 of the Act.
Whether HSE is justified in its decision to refuse a request, made under section 7 of the FOI Act, for access to certain records relating to the Applicant's late father on the basis that those records are exempt from release under various exemptions including section 21 of the FOI Act.
The Applicant made an FOI request to the HSE on 17 December 2007 for "all Medical, Pharmacology, Occupational, Psychiatric, Geriatric, Dentistry, Ophthalmic, Audiology, Administration, Documentation, Details, Reports, Daily drugs administration records, all kardex records, Complaints, Representation and all correspondence held by HSE West and Clare Mental Health Services and Cappahard Lodge for the period 1/1/05 to 6/6/07 for [the Applicant's late father] (RIP) DOB [ ]"
The Applicant requested access to:
The Applicant wrote to the HSE on 22 April 2008 requesting an internal review as no formal decision was received within the statutory period. The HSE released some records to her and in a late decision dated 22 May 2008 refused access to other records under sections 20, 21, 23, 26 and 28 of the FOI Acts. On 13 June 2008 the HSE wrote to the Applicant saying that it was "not in a position to carry out the internal review because of the large volume of records to be reviewed."The Applicant wrote to the Commissioner on 17 June 2008 seeking a review of the HSE's decision on the basis of a ''deemed refusal''. This Office asked the HSE to examine the matter and to inform this Office and the Applicant of its ''position'' on the case.
The HSE, in a letter dated 18 July 2008, explained the delay in dealing with this FOI request but failed to give its ''position'' on any review by a more senior officer of the decision to withhold records. In various submissions to this Office in the course of the review, the HSE stated that release of the records could impact on the ''ongoing independent investigation'' and that until its work had been concluded, release of the records at issue ''could prolong or even obstruct the work of the investigation."
I note that Ms Alison McCulloch, Investigator of this Office, engaged in extensive communications with the Applicant and the HSE resulting in the Applicant narrowing the scope of the review to two items - (1) letters of complaint by HSE staff about the Applicant and her sister and (2) a letter sent to Professor Brendan Drumm , Chief Executive of the HSE, from Dr Tom Reynolds, the consultant responsible for the care of the Applicant's father in March 2007. I also note that Ms McCulloch wrote to the HSE on 22 May 2009 and 12 May 2010 and to the Applicant on 15 January 2010 setting out her preliminary views on this case and that the HSE and the Applicant responded to these views. I consider that the review should now be brought to a close by the issue of a formal, binding decision.
In conducting this review, I have had regard to the submissions of the HSE. I have considered all of the submissions including those in e-mail exchanges between the Applicant and Ms McCulloch. I have also had regard to additional information and clarification provided by the HSE and the Applicant at the request of this Office and to the provisions of the FOI Acts. Matheson Ormsby Prentice (MOP), Solicitors, acing on behalf of Dr Reynolds - the author of the record described above - made a submission to this Office on 28 June 2010. I have also had regard to this submission. Although I do not address explicitly each and every one of the points made by the parties, I am satisfied that all the relevant matters within the revised scope of the review and within the jurisdiction of the Commissioner are considered and dealt with in the findings contained in this decision. Furthermore, issues raised and clarifications sought about FOI matters have been dealt with by the Investigator in her contacts with the Applicant.
Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review.
This review is concerned solely with the question of whether the HSE is justified in its decision to refuse access to (1) letters by HSE staff about the Applicant and her sister and (2) the letter sent to Professor Drumm by Dr Reynolds in March 2007. As regards the ''complaints'' I am taking these to be the various letters written by staff members about incidents involving the Applicant and her family and have identified records numbered 34J,197J, 215, 220J, 223J and 400G as coming within the scope of the review.
Firstly, it is relevant to draw attention to section 34(12)(b) of the FOI Act which provides that, in a review, "a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." This places on the HSE the onus of showing, to my satisfaction, that the decision to refuse access to the remaining records at issue in this case is justified in terms of the provisions of the FOI Act.
Secondly, while I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3), as amended, that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record or of matter that, if it were to be included in a record, would cause the record to be an exempt record. This means that the description which I can give of the content of some of the records in this case is limited as is the detail I can disclose in the course of considering the exemptions cited and the public interest.
Thirdly, it is relevant to note the wide scope of the original request. The HSE provided to this Office copies of the records which comprised nearly 4,000 records in 30 files. When asked to explain why the statutory timeframes were not adhered to in the decision making process, the HSE said "the nature of the records requested included records from various services within the Clare LHO Area. It also included records held by the CEO, Consumer Affairs, Corporate Office, Assistant National Director, HSE West. The complexity of the request was compounded by the fact that interwoven through the multiplicity of files sought were records held relating to investigations/complaints which are to be the subject of an Independent Review..."
It went on "the volume of this request resulted in a significant level of additional work due to the identification, scheduling, photocopying, reading and completion of the Public Interest tests relevant to all records to ensure that there was uniformity of exemptions with particular regard to duplicate records. The difficulties associated with processing this request was also compounded by the high level of duplicate records forming part of the various files.
The initial review suggested that the scope of the request was limited to identifiable locations. However, as the request was processed, it became apparent that the scope/remit of the request significantly exceeded what was anticipated, thus increasing difficulty in relation to coordination and staffing inputs."
The HSE further stated "there is no dedicated staff member attached to the Clare Mental Health Services with sole responsibility for the processing of FOI requests and it is additional to existing workloads. Arising from the current HSE recruitment and cost containment policy, the processing of this voluminous and complex application had to be undertaken by existing staff in addition to their assigned core responsibilities. During the processing of the application, due regard was given to the legal and statutory obligations. Compliance to the timeframes was further complicated by both planned and unplanned staff absences.......Seventeen staff members in Clare PCCC were involved in the preparatory work and in the processing of this application."
Given the volume of the records overall, the additional records released in the course of the review and the applicant's decision earlier in 2010 to allow this Office's consideration to be confined to the two items described above, I note the explanation provided in the circumstances of this case. However, the fact remains that FOI Act places onerous demands on public bodies and provides that Applicants are entitled to decisions and internal review decisions within the periods specified in the Act .
The HSE made no reference to section 28(6) of the Act which is relevant to requests for access to deceased persons' records containing their personal information. Clearly, the records in this case contain some personal information relating to the Applicant's late father. I take it that, given its release to the Applicant of many records containing the personal information of the deceased person, the HSE has accepted that, at the time of her request in 2007, the Applicant was an appropriate person to whom the records could be released under the 1999 regulations then in force (S.I. No.47 of 1999). However, these regulations were revoked on 25 September 2009 and the Applicant's right (if any) to access her late father's personal information under FOI at this time is governed by new regulations made by the Minister for Finance in 2009 - FOI Act, 1997 (Section 28(6)) Regulations, 2009 (S.I. No. 287 of 2009).
The Commissioner's review is in the nature of a de novo review in that it examines the position, including the statutory provisions, prevailing at the time of this decision. This approach has been supported by decisions of the High Court on appeals against the Commissioner's decisions. The 2009 regulations amend the position that obtained under the 1999 regulations whereby a next of kin or other suitable person appeared to have the right to gain access to the personal information of a deceased person. Article 4(1)(b)(iii) of the regulations provides that, subject to the other provisions of the FOI Act, a request for access to records of a deceased individual shall be granted to "the spouse or the next of kin of the individual where in the opinion of the head, having regard to all the circumstances and to any relevant guidelines published by the Minister, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing the request".
The records at issue are not restricted to the deceased person's personal information but also contain the joint personal information of the Applicant and other members of her family as well as information relating to staff and management issues within the HSE. Given that exemptions other than section 28 are relied on, I am satisfied that it is not necessary for the purposes of this review to seek information as to whether the Applicant is the next of kin of the deceased under the regulations. However, I will consider, where necessary, under section 28(5) of the Act, the public interest in preserving privacy rights in relation to personal information (whether that personal information be that of the deceased or of any person other than the requester).
The HSE relied on section 21(1)(a) of the FOI Act to refuse access to the records. In its submission, MOP, solicitors on behalf of Dr Reynolds, contend that exemptions at sections 21(1)(a) and 21(1)(b), amongst other exemptions, apply to the letter sent to Professor Drumm. Section 21(1)(a) provides that a request for access to a record may be refused where its release could reasonably be expected to "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".
Section 21(1)(b) provides that a request for access to a record may be refused where its release could reasonably be expected to "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)".
These provisions are subject to a public interest test at section 21(2) of the FOI Acts.
According to the HSE, the terms of reference for the independent review will address all matters and concerns in this case, including the interactions of the Applicant and her family with HSE staff. As I understand it, the investigation referred to is one set up in 2007 arising from complaints made by the Applicant and her sister and is considering the treatment and care provided by the HSE to the Applicant's father while he was a patient at Cappahard Lodge. Although the current status of the investigation has not been confirmed, the Applicant's submissions and media reports suggest that the investigation has reached the stage where draft findings were issued to affected parties for their comments. There has been no indication as to when the final report will be completed. I am satisfied that the investigation is one to which section 21(1)(a) could apply; however, that in itself is not sufficient to justify refusal of access to these records under the FOI Act.
In the case of the Sunday Times Newspaper & Others and the Department of Education and Science the previous Information Commissioner, Mr. Kevin Murphy, explained the approach which he adopted to applying this exemption. This Office has since adopted the same approach. In summary, the exemption is concerned with whether or not the decision maker's expectation is reasonable. 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.
It is appropriate here also to refer to the Supreme Court judgment in Sheedy v Information Commissioner  IESC 35, in which Mr. Justice Kearns stated, in relation to section 21(1), that "the onus to produce evidence of prejudice fell on the Department and in the absence of same the Commissioner was entitled, under s. 34 of the Act of 1997, to hold against the Department. A mere assertion of an expectation [of prejudice] could never constitute sufficient evidence in this regard".
Regarding the complaints, the HSE said that "the terms of reference set down for the review will address all matters and concerns in this case, including the manner in which [the Applicant] and [name of Applicant's sister] were personally treated by HSE staff". In relation to the HSE's contention that disclosure of the staff's letters would have an adverse affect on the independent review in progress, the HSE indicated, in a letter of 19 October 2009, that it would be in contact with this Office on receipt of legal advice in relation to this issue. However, no further references to legal advice were made in subsequent submissions.
No particular detail as to the nature or likelihood of the harm(s) envisaged has been provided. The Applicant has a potential right to records under the FOI Acts irrespective of whether a separate investigation into the events surrounding the records is taking place. The records at issue here are those in which staff of the HSE noted their concerns regarding the behaviour of and their interaction with the Applicant and her family on visits to the patient. Clearly, the parts of the records containing views and opinions about the Applicant are her personal information. In the interests of fairness, where complaints are made about an individual, these would normally be put to the individual concerned to provide an opportunity for response. I do not know whether the Applicant has been notified, through the investigation process or otherwise, of the substance of the concerns expressed in the records. She was present for the events referred to in the records and thus, would, in general terms, be aware of at least parts of the contents of the records.
I can see no harm to any of the procedures or methods adopted for the conduct of the independent review if the letters were to be released under FOI nor has the HSE identified any such harm by reference to the content of the records. As regards any harm or prejudice that might accrue to the effectiveness of the investigation or its ability to arrive at a result or findings, the HSE has not put forward any basis for the assertion that the effectiveness of the investigation would be prejudiced. The letters at issue involve the experiences of staff in the course of their work. I realise that relations between the Applicant and certain HSE staff were strained; however, it is likely that, of necessity, conflicts between the parties would have been part of the material to be considered in the course of the investigation and participants would have had the opportunity to put their respective accounts of events. I accept that the co-operation of employees is desirable for any future or ongoing investigations. However, I am not convinced that such co-operation would necessarily be curtailed if these records are disclosed under FOI. Presumably, any persons involved would remain anxious to put their account of what happened on record. In addition, there is a general onus on public servants, including those in the health service, to co-operate in regard to matters relating to their employment. Furthermore, I do not consider that co-operation is always a prerequisite to an effective investigation. Managers are entitled to take appropriate action where information sought is not supplied by staff reporting to them.
My finding is that the HSE has not justified refusal of these records under section 21(1)(a) and that the higher threshold of "significant adverse effect''required in order to apply the section 21(1)(b) has not been met either. Even if my finding was that the section 21 exemption did apply to the letters, I would have to go on to consider the public interest balancing test as required by section 21(2). The type of factors relevant are discussed below in the context of the other record at issue; it is not necessary for me to make a finding on the public interest in relation to the letters of complaint,
As well as personal information relating to the Applicant and her father, the records contain the personal information of other family members and a small amount of personal information relating to staff members which would come within the definition of personal information in section 2 of the FOI Act. On the face of it, personal information about the other individuals involved is exempt from release under section 28 of the FOI Act. The material in these records may be considered as "joint personal information". Section 28(5B) of the FOI Act (as amended) provides that where a record contains joint personal information, i.e. personal information about two or more individuals, third party information must, subject to the other provisions of section 28, remain protected.
Although it is likely that the bulk of the third party information is known to the Applicant, the fact remains that release under FOI must be taken as release to the world at large and I see no overriding public interest under section 28(5) of the FOI Act which would outweigh the protection of the privacy rights of the other persons mentioned with the exception of the Applicant's late father. The records disclose a very small amount of information about the Applicant's father and, on balance, I consider that the pubic interest would be better served by the release to the Applicant of that information. This Office will supply to the HSE a redacted version (with third party personal information removed) of the records lest there be any confusion as to the parts found to be exempt from release.
The HSE's decision claimed that section 20 of the FOI Act applied to the letters of complaint. It did not refer to this exemption in later submissions. Section 20(1) of the FOI Act provides that:
"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, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes),
I have not found any material in the records of complaints which relates to the HSE's deliberative process or that of any other public body. The exemption provided for at section 20(1) is not a mandatory exemption. In invoking a discretionary exemption, I expect that a public body will make a clear case in support of the need to rely on that particular exemption. Given that section 20, in broad terms, is intended to protect a deliberative process of a public body, one can reasonably expect that a public body, seeking to rely on section 20(1), will say why, in its view, release of certain records will have a detrimental effect on the particular deliberative process in question. Even if I were to conclude that section 20(1) did apply to the records, I would have to consider the public interest test provided for at section 20(3).
Having regard to the above and to section 34(12)(b) of the FOI Act, I find that the HSE has failed to satisfy me that its refusal under section 20(1) of the Act was justified.
Again, section 21(1)(a) and section 21(1)(b) are among the exemptions being claimed in respect of this record. Although the section 21(1)(b) exemption requires stronger evidence than the "prejudice" standard of section 21(1)(a). I will consider them together because there is considerable overlap between the inquiry process and the HSE's functions in relation to management.
The letter differs significantly in content and in tone from those records discussed at 1. above. The extent to which I can discuss the arguments made in the context of what information appears in this record is constrained by the requirement that I "take all reasonable precautions" to prevent the disclosure of information contained in an exempt record. While the submissions of MOP are made on behalf of the individual consultant involved, I am bound to consider the arguments advanced given that the author of the letter is an employee of the HSE and a person who may be affected by any release of this record. The HSE's general position on this record is that it is exempt under section 21(1)(a) and that the public interest would not be best served by its release at this time.
In its submission on behalf of the author of the letter, MOP contend that release could prejudice the effectiveness of the investigation by the HSE on the standard of care given to the Applicant's late father while a patient in Cappahard Lodge. Although MOP submit that the letter is important to the investigation, I must point out that it is not addressed to the independent review itself and it is fair to say that it raises issues which, though undoubtedly of relevance to the matters being investigated, may also have wider import in the context of the HSE's management, including its management of staff.
MOP's submission referred to the case of ABL and North Western Health Board (Case No. 99273 on www.oic.gov.ie) stating that "the Commissioner found that release of statements of health professionals contained in a report of an investigation of complaints could reasonably be expected to prejudice procedures of the kind adopted by the investigator, were they to be employed in future investigations". The circumstances of that case differ to this case in that the statements were provided specifically for investigation purposes and the parties involved were given assurances of confidentiality.
MOP also argue that release of the letter could result in consultants and other medical staff not writing such letters in the future or being less the frank in their communications. I am not convinced by this argument. As the Commissioner noted in Mr. Y and the HSE, Case Number 080144 (21 Oct. 2008) and in the more recent case 090154 Ms X and the HSE, [available on my website at www.oic.gov.ie], there is a general onus on public servants, including those in the health service, to cooperate in regard to matters relating to their employment. In other jurisdictions, the expectation that medical practitioners will conduct themselves in a professional and cooperative manner in relation to investigations has also been noted. For instance, in Medical Practitioners Board of Victoria v Sifredi  VSC 33 (15 Feb. 2000), at para. 15, the Supreme Court of Victoria stated: "This Court should not be seen to be supporting . . . such a general exemption nor should it lightly conclude that the medical profession would be so introverted and self-indulgent as not to aid in legitimate inquiries into the conduct of medical practice without an assurance of exemption." .
Having examined the content of the record very carefully, it seems to me that it discloses personal information relating to staff member(s) and that it includes material which, if released into the public domain would reasonably be expected to significantly adversely affect the HSE's ability to carry out its management functions, particularly in relation to staff management and industrial relations. The Commissioner has held in previous cases that records relating "to the competence or ability of the individual in his or her capacity as a member of the staff of a public body ...." [part of the definition of "personnel record" in section 6(6)(a) of the FOI Act] are the personal information of staff. While not disclosing its nature, I am satisfied that some of the record comprises such personal information and that section 28 of the Act would apply to exempt those parts.
The section 21(1)(b) exemption (set out above) underpins refusal of access to a record where there is a reasonable expectation that the management role could be prejudiced, or adversely affected to a significant degree by the granting of access to the record. I am satisfied in the circumstances of this case that this record qualifies for exemption under section 21(1)(b). The extent to which I can discuss the arguments made in the context of what information appears in the record without disclosing the content is very limited. I have considered whether it would be an option to release parts of the record. However, while section 13 of the FOI Act allows for this, I consider that it would not be feasible or desirable to extract the odd sentence and that the result would be misleading so I have decided to apply the exemption to the record as a whole.
Given my finding that section 21(1)(b) applies, I must go on to apply the public interest balancing test as required by section 21(2) of the FOI Act.
Those factors which favour the release of the record include:
The public interest factors which favour refusal of the request in relation to the letter include:
In my view, the public interest in ensuring that the decisions of public bodies, particularly where they have potential to affect patient care, are open and transparent is strong. However, the fact that the letter at issue was intended to bring issues to the attention of the CEO of the HSE which were not confined to the care of the Applicant's father somewhat weakens the public interest in release of the record to the Applicant. I note also that no decision appears to have been taken on foot of the letter sent. The public interest in preserving the privacy and reputations of individuals mentioned in the records pending any findings in relation to their roles in the subject of the investigation is very strong as is the public interest in employees being free to communicate frankly their concerns to senior management. It seems to me that the benefit to the Applicant of having access to this record is outweighed by the public interest factors identified in favour of withholding it. I believe that the public interest in complaints and allegations being properly investigated is satisfied in this case by the ongoing investigation of the matter and that, on balance, the public interest does not require the release of this record at this time given its content and the significant risk that it would adversely affect management functions including those related to staff management and industrial relations in the context of the care facility involved. Therefore, I find that the public interest would, on balance, be better served by refusing to grant the request insofar as it relates to the record identified at 2 above - the letter to Professor Drumm from Dr Reynolds.
In addition to the section 21 arguments, MOP submitted that several other exemptions under the FOI Act would apply. Since I have found that the record is exempt under section 21, it is not necessary to analyse the arguments made in this regard. I will, however, comment on the assertion that the information in the letter was provided in confidence and that section 26 of the Act would apply. I must point out that the confidentiality exemption does not apply to a record prepared by a staff member of a public body, or a person who is providing a service for a public body under a contract for services, "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" [section 26(2) refers]. The record at issue in this case was prepared by a staff member of the HSE in the course of the performance of his or her official functions as a consultant. I refer to the decision of the High Court in The Health Service Executive v. The Information Commissioner and BK  IEHC 298.
Having carried out a review under section 34(2) of the FOI Act 1997 as amended, I hereby vary the decision of the HSE. I find that the records identified at 1 above and numbered 34J,197J, 215, 220J, 223J and 400G in the HSE Schedule do not qualify for exemption. I direct that they be released subject to the removal of personal information of third parties. I affirm the decision of the HSE to withhold the record at identified at 2 above - letter sent to Professor Drumm by Dr Reynolds dated 6 March 2007.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.