Case number: 090192

The Information Commissioner found that the claims for exemptions under sections 20 and 21 of the FOI Act made by the HSE and (HIQA) were not justified in this case having regard to section 34(12) of the Act. Accordingly, she annulled the decision of the HSE and directed the release of the interim report in full.

Case Summary

Whether the HSE's decision to refuse access to parts of the Health Information and Quality Authority (HIQA) Interim Report on Symptomatic Breast Disease Services at University College Hospital Galway (UCHG) was justified.

Date of Decision: 13.04.2010

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner.

Background:

This review is concerned with the question of access to HIQA's Interim Report on Symptomatic Breast Disease Services at UCHG, which was based on a validation assessment visit that took place on 23 September 2008. The interim report derived from the quality review programme that commenced in 2008 in order to improve and develop symptomatic breast disease services in line with the National Cancer Control Programme. Under the National Cancer Control Programme, UCHG was designated as one of the eight specialist centres for cancer care in Ireland. The focus of the interim report at issue in this case is on the readiness of the symptomatic breast disease services at UCHG for the transition as of the time of the validation visit. Its purpose was to identify any gaps in meeting the National Quality Assurance Standards for Symptomatic Breast Disease Services(the Standards), and it included recommendations for future progress. The quality review programme was due to be completed by December 2009, by which time all of the designated centres were expected to be fully operational and compliant with the Standards. HIQA's final report on the matter, "National Quality Review of Symptomatic Breast Disease Services in Ireland", was published on 25 February 2010.

The Applicant made his FOI request on 24 April 2009. The HSE refused the request on 18 June 2009. Following an application for internal review, the HSE on 9 July 2009 granted access to the sections of the interim report which explain the quality review programme and the validation assessment questionnaire used; however, access was refused to the remainder of the report under sections 21(1)(a) and (b) of the FOI Act. Although the reasoning underlying that decision related largely to the fact that the quality review programme was still underway at the time, the HSE has not reconsidered its decision despite the publication of the final report on the matter. Moreover, in a submission dated 15 March 2010, which was made in response to the preliminary observations of Ms. Melanie Campbell, an Investigator of this Office, HIQA has objected to the release of the interim report under section 20(1) of the FOI Act, as well as under sections 21(1)(a) and (b). In its submission of 24 March 2010, the HSE argued that sections 21(1)(a) and (b) still apply to exempt the report and that the public interest favours withholding it. Having had regard to the contents of the submissions and the interim report, I have decided to conclude this review by way of a formal, binding decision.

Conducted in accordance with section 34(2) of the FOI Act by the Information Commissioner.

Scope of the Review

This review is concerned solely with the question of whether the decision to refuse access in part to the interim report was justified.

Submissions

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Findings

Preliminary Matters

It is important to have regard to the extent to which the FOI Act confers on members of the public a statutory right to access records held by public bodies. This is something which the Courts have acknowledged. For example, Mr. Justice McKechnie, in his judgment in Deely v. The Information Commissioner [2001] IEHC 91 had this to say about the FOI Act:

"[The Act's] passing, it is no exaggeration to say, affected in a most profound way, access by members of the public to records held by public bodies and to information regarding certain acts of such bodies which touch or concern such persons. The purpose of its enactment was to create accountability and transparency and this to an extent not heretofore contemplated let alone available to the general public. Many would say that it creates an openness which inspires a belief and trust which can only further public confidence in the Constitutional organs of the State.

[...]

[T]he clear intention is that, subject to certain specific and defined exceptions, the rights so conferred on members of the public and their exercise should be as extensive as possible, this viewed, in the context of and in a way to positively further the aims, principles and policies underpinning this statute, subject and subject only to necessary restrictions.....

It is on any view, a piece of legislation independent in existence, forceful in its aim and liberal in outlook and philosophy."

This view of the extensive nature of the rights conferred by FOI has been endorsed by the Supreme Court, in Barney Sheedy v. The Information Commissioner[2005] IESC 35 (text of judgment also available at www.oic.gov.ie), where Mr Justice Fennelly commented:

"The passing of the Freedom of Information Act constituted a legislative development of major importance. By it, the Oireachtas took a considered and deliberate step which dramatically alters the administrative assumptions and culture of centuries. It replaces the presumption of secrecy with one of openness. It is designed to open up the workings of government and administration to scrutiny. It is not designed simply to satisfy the appetite of the media for stories. It is for the benefit of every citizen."

Thus, the underlying presumption of the FOI Act is that requests for access will be granted, subject only to necessary restrictions. I also wish to emphasise that, under section 34(12)(b) of the FOI Act, a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." Moreover, any review by my Office under section 34 of the FOI Act is based on the circumstances and the law as they pertain at the time of the decision.

I should also note, however, that while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. This constraint means that, in the present case, the description that I can give of the contents of the interim report is limited.

Section 20(1)

In its submission dated 15 March 2010, HIQA argues that the quality review programme "necessarily involved deliberations" between itself and the HSE and that the interim report contains "proposal type information" that is exempt under section 20(1) of the FOI Act. Section 20(1) provides:

" 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)."

Section 20(1) is subject to a public interest test under section 20(3).

I do not accept that the interim report qualifies for exemption under section 20(1) of the FOI Act for a number of reasons. Firstly, section 20(1) is a discretionary exemption which the delegated decision makers at the HSE correctly declined to invoke. The quality review programme has now been completed, and HIQA has not explained how or why release of the interim report could have any detrimental effect on any particular deliberative process involved. Secondly, the interim report itself does not relate to the deliberative processes of any public body, as the relevant decision to designate UCHG as specialist cancer centre had already been made. By the time the quality review programme commenced, the Standards had already been developed and mandated by the Minister for Health and Children; HIQA's role under the quality review programme was, in effect, to help ensure that the eight designated specialist centres, including UCHG, met the Standards by the end of 2009. In other words, the report relates to the implementation rather than the deliberative process with respect to the provision of symptomatic breast disease services in Ireland. Thirdly, HIQA does not identify any of the "proposal type information" referred to. The report includes general recommendations, but these are directed at the designated centres, not the HSE, and are aimed at supporting the required transition under the National Cancer Control Programme. Moreover, the recommendations have been published with the final report.

Fourthly, I note that the report is largely factual in nature and thus is excluded from the deliberative process exemption by virtue of section 20(2)(b). Finally, even if the report involved deliberations between HIQA and the HSE, it would fall within the ambit of section 20(2)(d), which states that the deliberative processes exemption does not apply to a record if and insofar as it contains "a report of an investigation or analysis of the performance, efficiency or effectiveness of a public body in relation to the functions generally or a particular function of the body". Although it is not necessary for me to do so, I will address the public interest below in the context of the other exemption claimed.

Section 21(1)(a) & (b)

Claims for Exemption

Both the HSE and HIQA have invoked sections 21(1)(a) and (b) of the FOI Act in relation to the withheld parts of the interim report.

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)".

In its original decision, the HSE suggested that release of the report "would disclose information that would be prejudicial to the effectiveness of the overall quality review programme for symptomatic breast disease service which is due for completion in December 2009". The HSE also considered that it would be unfair to staff who are engaged in the process to release the interim report, because it may result in "undeserved criticism leading to demotivational factors" which would, in turn, impact on and delay the current programme of work to meet the set standards for symptomatic breast disease services. The HSE says that the interim report is ''outdated'' and does not reflect the objective assessment as at the end of 2009. It argues that to publish the report would be harmful to the "relationship of trust'' established and would endanger the future success of similar quality review programmes. In applying the public interest balancing test, the HSE found that the factors against disclosure outweighed the factors favouring release. The HSE considers that the involvement of an independent authority such as HIQA means that "there is a high level of public accountability already in the process" which reduces the weight attached to the public interest in disclosure. It submits that because HIQA was set up to provide assurance that the highest standards of safety and best practice are adopted, its role to date in doing this ''negates the public interest factors'' in favour of release of the interim report. In summary, the HSE states: "there is a very strong public interest to establish the eight designated cancer centres and ensure that the quality review of symptomatic breast disease is completed on time".

In its submission, HIQA argues that the procedures it adopted in conducting its quality review programme required input from certain individuals, including patients and their relatives, as well as public servants and professionals. HIQA claims that the contributions were made by the various relevant parties "on the understanding that interim, incomplete and unfinished findings would not be published". According to HIQA, its procedures for conducting such reviews "rely on parties contributing to the review being satisfied that what they say will not be revealed to any extent greater than is necessary for the purposes of [HIQA] making findings and recommendations by way of its Final Report". HIQA asserts: "If certain parts of the Interim Report were released there is a real and definite risk that parties contributing to similar reviews by [HIQA] would be less frank in their comments in the future."

Acknowledging the view taken by this Office that there is a general onus on public servants, including those in the health service, to cooperate in regard to matters relating to their employment, HIQA points out that other members of the public whose contributions may be desired, such as patients and their relatives, are under no such onus or compulsion. HIQA further notes that "Irish criminal courts have long accepted that due to a culture of fear and intimidation, strict compliance with the law and cooperation with public authorities is not always an option available to certain members of the public". HIQA is concerned that a culture of non-cooperation or reduced cooperation among HSE employees may result from the release of the interim report, which in turn would require HIQA to adopt a more confrontational, adversarial approach to the conduct of similar inspections and reviews in future. In relation to the public interest, HIQA argues that, in light of the information made available in the final report, full release of the interim report would not add significantly to the public's understanding of its acts or decisions; thus, little weight should be attached to the public interest in granting the request.

The Harm Tests

Section 21(1)(a) provides that a public body may refuse access to a record if it considers that access 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 access 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.

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 with whether or not the decision maker's expectation is reasonable.

It is appropriate here to refer to the Supreme Court judgment in Sheedy v Information Commissioner [2005] 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". Thus, in the present context, I consider that the HSE must show some evidence of prejudice if its reliance on section 21(1)(a) is to be justified. In the case of a claim under section 21(1)(b), a stronger showing of harm is required than under the "prejudice" standard of section 21(1)(a). When invoking section 21(1)(b), the public body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Not only must the harm be reasonably expected, but it must also be expected that the harm will be of a more significant nature than that required under section 21(1)(a). Like section 20(1), both sections 21(1)(a) and (b) are subject to a public interest test (section 21(2) refers).

Analysis

I note that the HSE's claims for exemption under section 21(1)(a) and (b) turned on the fact that the quality review programme was not yet complete at the time of its decision and a claim that the interim report is based on incomplete information '' that has not necessarily been fully verified and authenticated''. In a preliminary view letter which issued on 25 February 2010, immediately before the publication of the final report was announced, Ms. Campbell noted that it had not been shown how the release of the interim report could reasonably be expected to further delay or otherwise harm the work of the quality review programme at that time.

I am surprised that the two public bodies involved have taken the position they have in this, the twelfth year that the FOI Act has been in force in Ireland. The arguments in the case amount, in effect, to a class-based claim for exemption in relation to interim reports involving discussions with staff regardless of content or the timing of release. In my view, such an approach is untenable under section 21(1) of the FOI Act.

HIQA has presented no evidence whatsoever to show that there was any understanding of confidence on the part of any of the relevant parties with respect to the interim report. Moreover, it seems to me that no reasonable expectation of confidence could have arisen with respect to a report of this nature unless assurances of confidentiality had been given, which in any event would have been entirely inappropriate in the circumstances. The report reflects how well UCHG, a publicly funded hospital designated as a specialist centre under the National Cancer Care Programme, was able to demonstrate that it met certain required Standards for care as of 23 September 2008. It is largely a factual account based on the evidence presented by UCHG at the time of validation visit. It includes no patient details or other sensitive information that would give rise to any concerns regarding the privacy rights of patients. Indeed, while the final report refers to patient discussions, this is not reflected in the interim report at issue in this case, which suggests that the patient discussions took place only at a later stage of the review programme.

I also note that neither HSE nor HIQA has identified with any specificity the "certain parts" of the interim report whose release would result in "a real and definite risk" of inhibiting cooperation in the future. It is particularly surprising to me that HIQA would refer to criminal cases in the context of a health care report of this nature. I do not think that I would be revealing exempt information in violation of section 43(3) of the FOI Act by observing that all of the individuals that HIQA met with on the day of the validation visit are identified in the report as "key personnel involved in the provision of specialist breast disease services". I certainly do not accept that "a culture of fear and intimidation" could arise among such personnel as a result of the full release of the report at issue. It seems to me that it is reasonable to expect that such personnel would be aware of the rights conferred on members of the public under the FOI Act. In any event, as I noted in the case of Mr. Y and the HSE, Case Number 080144 and in the more recent case of Ms X and the HSE, Case Number 090154, 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 [2000] 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."

The final report states that, in September 2008, UCHG "did not provide evidence to demonstrate that the appropriate arrangements were in place to assure itself that it was meeting the Standards". Thus, the fact that there were gaps in meeting the Standards by verifiable means is now a matter of public knowledge. Release of the interim report in full would simply provide the details regarding the gaps that were found on the day of the validation visit in September 2008. Having regard to its content, I find no reasonable basis for concluding that the cooperation of Hospital personnel, HSE staff members, or private citizens, including patients, in future such reviews by HIQA could be inhibited by reason of the release of the report in question. I find that neither the HSE nor HIQA has met its burden of showing that the claim for exemption under section 21(1)(a) is justified. It follows that the stronger showing under section 21(1)(b) has also not been met.

The Public Interest

Although I do not accept that the interim report qualifies for exemption in the first instance, I feel that I should nevertheless make a few comments on where the public interest lies in this case. The quality of cancer care services in this country is a matter of real public concern, and I consider that there should be maximum openness and transparency with respect to how the designated specialist centres perform against national standards. Moreover, it is in the best interests of health care personnel and patients alike that health care services are properly monitored for quality and safety. It seems to me that, rather than bolster cooperation with quality reviews and investigations, the withholding of reports such as that at issue in this case could reasonably be expected to undermine confidence in the procedures used for reviews and investigations, because it would be less apparent whether all relevant information has been subject to proper consideration throughout the process. The withholding of such reports could also reasonably be expected to further undermine public confidence in the health care system generally by giving rise to unnecessary suspicions regarding the findings that were made.

Although the interim report at issue in this case is now dated, it can be read in conjunction with the final report to give a more complete picture of the development and improvement in symptomatic breast disease services at UCHG under the National Cancer Control Programme. Its release under FOI would allow members of the public to ask informed questions regarding the progress that was made by UCHG during the quality review programme. The HSE had expressed concern that, being out-of-date, the report could be misinterpreted, but I consider that the context of the report is self-evident. As noted above, the interim report provides the details regarding the gaps that were found in meeting the Standards in September 2008. HIQA and the HSE describe the report as incomplete and unverified, but this description is not supported by the content of the report. The fact that the situation may have changed in the period between the compilation of the interim report and the present day does not mean that the report itself is incomplete or unverified. The interim report appears to me to present a complete picture of the manner in which UCHG was able to demonstrate, on the day of the validation visit, that its symptomatic breast disease services performed against a certain selection of the Standards. I can find no basis for the assertion that release of this interim report would interfere with the timely provision of the planned cancer centres. Neither do I consider it appropriate for me to give significant weight to considerations of the use to which the record at issue might be put in terms of opposition to the change programme.

I find that the public interest would, on balance, be better served by granting rather than by refusing access to this information.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the HSE and direct the release of the interim report in full.

Right of Appeal

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 a review must be initiated not later than eight weeks from the date of this letter.

Emily O'Reilly

Information Commissioner

13 April 2010