Case number: 110106

Application for review remitted for determination in accordance with the law by the President of the High Court. The Applicant requested a review of the decision of the HSE to grant access to reports compiled following investigation of complaints made against a Nursing Home ("the nursing home").


Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, Office of the Information Commissioner, authorised by the Information Commissioner ("the Commissioner") to conduct this review.

Background

The application for review of the FOI decision of the HSE was remitted to the Commissioner by Order of the High Court which was perfected on 31 May 2011. The decision of the Commissioner which was appealed to the High Court on a point of law was a decision arising from an application for review by the applicant with whom the HSE consulted in accordance with section 29 of the FOI Act. That decision issued on 11 June 2010 (Case No. 090314 refers).

The applicant was the Person-in-Charge at the nursing home which was the subject of the information in the records to which access was granted by the HSE in a decision dated 30 November 2009. The application for review was received by the Commissioner in accordance with section 29 of the FOI Act which provides for such a review on application from a third party to whom information in the records relates where that information is covered by one or more of the exemptions at sections 26, 27 or 28 of the FOI Act and where access (with the right to seek review by the Commissioner) has been granted in the public interest. The HSE decision to grant access to the records followed an FOI request dated 12 August 2009 for "copies of all reports compiled between January 1, 2005 and June 1, 2009 in relation to complaints made against the nursing home."

Section 29 is the section of the FOI Act which is applied in cases where the starting position is that the public body concerned considers that one or more of three of its exemptions - section 26 (information obtained in confidence), section 27 (commercially sensitive information) or section 28 (personal information) applies to the records but that the public interest in granting the request outweighs the public interest in refusing access. Before reaching the decision on whether or not the particular exemption/s can be set aside in the greater public interest, the public body concerned must notify the person(s) to whom the information relates and it must take account of any submissions made. In this case, having done so and having considered the applicant's submissions, the HSE issued a decision to grant access to the records.

In her preliminary views letter dated 27 January 2012 to the applicant, Ms O'Brien, Investigator, has explained the approach on the remitted review in considerable detail. I do not propose to repeat those views to the same level of detail. The applicant's submission in response to those views was received on 17 February 2012 and has been fully considered by me. In all the circumstances, I am now concluding the review with a binding decision.

In conducting this review I have had regard to the following:

the High Court Order perfected on 31 May 2011 (2010 221 MCA),
all submissions of the applicant relating to the FOI decision of the HSE dated 30 November 2009,
all submissions of the HSE to this Office relating to its FOI decision dated 30 November 2009,
the contents of the records at issue, and
the provisions of the FOI Act.

Scope of the Review

Section 34(12)(a) of the FOI Act provides that:

"(a) a decision to grant a request to which section 29 applies shall be presumed to have been justified unless the person concerned to whom subsection (2) of that section applies shows to the satisfaction of the Commissioner that the decision was not justified".

This effect of this section is to place the burden on the applicant, as the party seeking review of the decision to grant access, of showing to the Commissioner's satisfaction that the FOI decision of the HSE to grant that access in the public interest was not justified.

Accordingly, the review in this case (of a decision on a request to which section 29 of the FOI Act applies) is concerned only with whether the applicant has shown that the decision of the HSE to grant access to the following complaint investigation reports in the public interest was not justified.

Report No. 27 dated 28 August 2007
Report No. 28 dated 8 January 2009
Report No. 30 dated 8 January 2009
Report No. 32 dated 12/14 March 2008
Report No. 48 dated 22 May 2009
Report No. 49 dated 30 March 2009.

Preliminary Matters

At the outset, I would like to make a number of preliminary comments relating to the review. The records at issue consist of reports prepared by the HSE between 28 August 2007 and 30 May 2009 following the investigation of complaints received by the HSE regarding the nursing home. This review is not concerned with the administrative procedures and processes by which the complaint investigation reports to which access has been granted came into existence. Equally, the review is not concerned with, and will not make any reference to, the methodology, findings or conclusions of the complaint investigation reports or to any views expressed in relation to these matters. In accordance with the provisions of the FOI Act, this review is concerned only with whether the applicant has shown to the satisfaction of the Commissioner that the public interest would not be better served by granting the FOI request for access to the complaint investigation reports.

Secondly, I note that the HSE decided to redact a section of the report dated 12 March 2008 together with the personal information of individual residents and staff of the nursing home from the records to which access was granted. As this review arises from an application for review by the applicant with whom the HSE consulted in accordance with section 29 of the FOI Act, this review is concerned with whether the HSE was justified in deciding to release the records as redacted. The appropriateness, or otherwise, of the HSE's decision to withhold certain parts of the records does not come within the scope of this review.

Finally, the applicant has informed this Office of her view that the records at issue have already been released to the requester. In response, the HSE states that this is not the case. As no concrete evidence has been presented to this Office to indicate otherwise, I accept the HSE's statement on this point.

Analysis and Findings

Section 27 - Commercially Sensitive Information
In the course of this review, the HSE has confirmed that the exemption applied to the information contained in the records at issue is section 27, a mandatory exemption relating to commercially sensitive information.

Section 27(1) of the FOI Act provides that, subject to certain specified exceptions,


".... a head shall refuse to grant a request under section 7 if the record concerned contains-

a) trade secrets of a person other than the requester concerned,

b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or

c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates."

In accordance with section 27(3), section 27(1) does not apply where, in the opinion of the head of the public body concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request.

The Public Interest
The decision under review is a decision to grant access in the public interest to complaint investigation reports records relating to the nursing home at which the applicant was the Person-in-Charge. I understand that the reports in question were prepared by the HSE following investigations carried out under the Nursing Homes (Care and Welfare) Regulations, 1993 as a result of complaints received. Prior to 1 July 2009, when responsibility was assigned to the Health Information and Quality Authority (HIQA), the implementation of these regulations was a matter for the HSE.

Many of the points raised by the applicant in her various submissions do not address the public interest arguments in favour of withholding the records at issue. Rather they serve to support her concerns relating to (i) the accuracy and veracity of certain information contained in the records, (ii) the administrative procedures and processes adopted in connection with the creation of the records and (iii) the effect which the release of the records might have on matters unrelated to the specific investigations upon which the records were based. However, I have considered the various submissions in so far as they serve to argue why the public interest would, on balance, be better served by withholding the records.

On the matter of where the balance of the public interest lies, I note that Ms O'Brien brought to the applicant's attention a decision of the Commissioner in Case No. 020533 - Mr. X and the South Eastern Health Board- which included conclusions in relation to the public interest and private nursing homes, as follows:

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

The first is that the Exchequer, via the health boards, pays out substantial sums to such homes in the form of subventions to patients resident in nursing homes. Ensuring accountability in respect of this funding constitutes a very significant public interest.

The second reason is that the public has a very strong interest in knowing that such homes operate within the standards prescribed by law - in the Health (Nursing Homes) Act, 1990 along with related regulations - and which health boards, on behalf of the public, are required to enforce."

The Commissioner went on to develop her views further as follows:

".... there is a significant public interest in the public knowing how health boards carry out nursing home inspections in individual cases and that the regulatory functions assigned to the boards achieve the purpose of the relevant legislation. Indeed, I take the view that in the normal course reports of health board inspections of private nursing homes should be available as a matter of routine, subject only to the deletion of personal information and, occasionally, the protection of confidentiality in relation to third parties. There is an overriding public interest in ensuring that the health, security and welfare of elderly and vulnerable members of society is seen to be protected by the enforcement by health boards of the relevant legislation ....

I appreciate that there is a public interest in supporting an environment conducive to the conduct of business, including the operation of private nursing homes. However, in terms of balancing the competing public interests at issue here, I find that the advantages in terms of openness and accountability of disclosing the information in the records in question ... outweigh any possible harm to the Home and that the public interest is better served by the release of these records."

In my view, the views of the Commissioner are relevant to the circumstances of this particular case. I consider that there is a significant public interest in optimising openness and transparency in relation to inspections carried out by the HSE under the Nursing Homes (Care and Welfare) Regulations, 1993. I also share the view that there is a significant public interest in ensuring accountability in respect of the substantial sums paid out by the Exchequer in terms of subventions to patients resident in nursing homes. I believe that the release of the records at issue in this case would serve those significant public interest factors.

In her submission of 17 February 2012, the applicant states that the nursing home did not have a contractual relationship with the HSE or any other relevant agency for the provision of care to individuals but instead contracted privately with patients and their relatives. She argues that the State provided funds to patients which they could then use to purchase private nursing care and that any public interest in those funds is a matter between the patient and the State. I disagree. The fact remains that the Exchequer paid out substantial sums to such nursing homes in the form of subventions to patients resident in those homes.

As I have indicated above, the public interest factors in favour of the release of the records must be balanced against the public interest in protecting against the harms which might be caused by their release and which the section 27 exemption seeks to protect. As with Case No. 020533, I accept that there is a public interest in supporting an environment conducive to the conduct of business, including the operation of private nursing homes. The applicant contends that the public interest would not be better served by granting access to the records. However, as I have indicated above, many of the issues raised in her submissions do not address the arguments how the release of the records might give rise to the harms outlined in section 27. Nevertheless, I have considered the arguments made in so far as they can be interpreted as true public interest arguments in favour of refusing access in the context of the section 27 exemption.

I should explain at this stage that reviews by the Commissioner of decisions of public bodies are regarded as de novo. That is, the decision of the public body is reviewed in light of the circumstances and the law as they pertain at the time of the Commissioner's decision. This view is supported by the 2001 High Court Judgement in the case of The Minister for Education and Science v the Information Commissioner where Justice O'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 was 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."

On this point, I understand that the nursing home in question has since closed. As such, it is not clear to me how the release of the records at this stage could possibly give rise to any of the harms outlined in section 27 in relation to the nursing home. I accept, however, that the release of the records could, arguably, prejudice the competitive position of the applicant in the conduct of her profession or business generally in the future, although no argument has been made that this is the case. The applicant has expressed concerns as to the accuracy of certain statements contained in the records and as to the defamatory nature of the records. While it is not a matter for this Office to consider the accuracy, or otherwise, of the statements provided to HSE staff during inspections, I have carefully examined the records and I note that they contain details of the findings of the HSE following inspection of the nursing home, and of the basis for those findings. In the circumstances, I do not accept this as a valid public interest argument for refusing access to the records.

The applicant also argued that all the information she provided or that was provided by the staff of the nursing home was provided in confidence and that the publication of the information would constitute a breach of a duty of confidence owed. I accept that there is a public interest in members of the business community (including nursing home proprietors/operators) being able to communicate with public bodies (such as the HSE) without fear of disclosure in relation to sensitive matters. It is noteworthy that the HSE did not consider section 26 (relating to the protection of confidential information) to apply to the reports at issue. In any event, the section 26 exemption is also subject to the consideration of a public interest balancing test. Furthermore, I find it difficult to accept that any understandings of confidence would exist in circumstances where the HSE was involved in the investigation of alleged breaches of the relevant regulations. Accordingly, I cannot accept the argument that disclosure of the records concerned would constitute a breach of a duty of confidence in this case.

Having considered the matter at length, I have concluded that the factors outlined by the applicant for the purpose of showing that the granting of access is not justified do not displace the public interest in the granting of such access. I find that the applicant has not shown to my satisfaction that the decision of the HSE to grant access, in the public interest, to the complaint investigation reports was not justified.

Decision

Having carried out a review under Section 34(2) of the FOI Act, I affirm the decision of the HSE in this case.

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. Any such 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.


Stephen Rafferty
Senior Investigator