Case number: 120023
The relevant element of the applicant's FOI request of 4 October 2011 (as modified on 28 October 2011 at the request of the Body) sought a "[c]omplete record of communications between the [Body and Mr Y] concerning me". On 22 November 2011, the applicant internally appealed the Body's decision of 21 November 2011, which had stated that it held several lever arch files of relevant records that it had to consider before releasing any records to him. The Body's internal review decision of 26 January 2012, in so far as it dealt with that element of the request under the scope of this review, said that it would release a number of relevant records, of which the applicant sought a review by this Office on 1 February 2012.
In the course of this Office's review, further records were partially released, and explanations were given to the applicant as to why other details were considered to be appropriately withheld (I do not intend to repeat those explanations in this decision). The applicant consequently withdrew the majority of his application for review. However, he did not accept the Body's refusal of one record - record 20 on File 4 - under section 26(1)(a) of the FOI Act.
In carrying out my review, I have had regard to copies of the records considered by the Body as relevant to the request, including record 20 on File 4 (all of which were provided to this Office for the purposes of the Commissioner's review); to correspondence between the Body and the applicant, including those as set out above; to details of various contacts between this Office and the applicant; to details of various contacts between this Office and the Body, particularly a "preliminary views letter" sent to it via its legal advisors by Ms Anne Lyons, Investigator, dated 9 October 2012 and its response dated 8 November 2012 (legal advisors acted on the Body's behalf in the course of this review, and references to "the Body" in the remainder of this letter may be read accordingly); and to details of a letter sent by Ms Lyons to Mr Y (to whom I will refer as the "third party" in the remainder of this letter) on 18 October 2012 and his response dated 7 November 2012. I have also had regard to the relevant provisions of the FOI Act.
The scope of this review is confined to assessing whether the Body's refusal of record 20 on File 4 (to which I will refer in the remainder of this decision as "the withheld record") is in accordance with the provisions of the FOI Acts.
It is important to note that section 43(3) of the FOI limits the extent to which this Office may describe any withheld record. Furthermore, section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to the Commissioner's satisfaction that its decision was justified.
The withheld record is an email that the third party sent to the Body after he had concluded what I understand to be an independent investigation into whether or not certain actions taken by the applicant amounted to "an act or acts of misconduct or gross misconduct", and the Body's reply to the third party. The Body has refused that record under section 26(1)(a) of the FOI Act, which provides for the mandatory refusal of a record containing information:
However, section 26(2) provides that subsection (1) shall not apply to a record which is prepared by a head, directors or staff members 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 a head, director, or member of staff of a public body, or someone who is providing or provided a service for a public body under a contract for services. "
The Body's letter to this Office of 9 May 2012 stated that the third party "was no longer a service provider to the [Body] when he sent the email in question", which Ms Lyons took to indicate that the Body considered section 26(2) to be irrelevant. Whilst noting such a position, Ms Lyon's preliminary view letter said that she did not consider section 26(1)(a) to apply to the withheld record in the first place. In this regard, she noted that the email did not state that it was being given in confidence or request that it be treated as such, nor did the response give or suggest any assurances in this regard. Accordingly, she considered the first two tests, as set out above, not to have been met.
The Body's reply of 8 November 2012 argued that, having regard to particular cases considered by this Office in the past, the most relevant issue was the context within which the communication was made and the contents of the communication concerned. Firstly, whilst noting the cases referred to by the Body, this Office's understanding of the first two tests of section 26(1)(a) have been superseded by the July 2011 judgments of the Supreme Court, in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner. In particular, Justice Macken said that what is protected under section 26(1)(a) "stems from the circumstances in which the material is given, and not from the nature of the material itself"; and that the information need not be " 'confidential information' or 'private and secret' or subject to a 'duty of confidence' ... or to have any so-called necessary 'quality of confidence', as defined, other than as to the circumstances in which it was imparted and received."
The Body has argued that the relationship between the third party and the Body was such that the third party could only have made the comments "on the understanding that they would be confidential and not disclosed to third parties" (including, presumably, the applicant). The third party argued that, having sent the email some 24 days after the completion of the report, he "wholly assumed that the email was a confidential communication and would be treated as such by the [Body]", "in the context of all the interactions and factors that surrounded the case".
I agree with Ms Lyons' observation that neither the withheld record, nor the response to that record, indicate that either the Body or the third party had any kind of understanding that the latter gave the information in the withheld record to the Body in confidence and on the understanding that it would be treated by it as confidential. I also note that the Body's submissions appear to represent its understanding of the circumstances under which the third party sent the email, rather than representing why it, presumably, held the same position having regard to the circumstances in which that email was received. In this regard, I note that Macken J. referred to the importance of considering the "circumstances in which [the information] was imparted and received" (my emphasis). Furthermore, the relationship between a patient and a Hospital is, of its nature, much more confidential than a relationship between a public body and a service provider. Thus, one could question whether an examination of the "circumstances in which [the information in the withheld record] was imparted and received" in the circumstances of this case actually support the arguments made by both parties as set out earlier. However, I do not feel it is necessary for me to make a finding on these arguments in light of my consideration of the extent to which the fourth test, as also set out above, appears to be met in the circumstances of this case.
In that regard, Ms Lyons' preliminary views letter explained why she did not consider it to be of importance for the Body to continue to receive further similar information to that in the record at issue, whether from the third party or any other (an opinion which she also put to the third party). I do not feel it appropriate to outline the details of her argument in this decision, in light of the requirements of section 43(3) of the FOI Act.
The Body's letter of 8 November 2012, although appearing to accept that it is not necessary for it to continue to receive communications such as the one at issue, argued that service providers "may be reluctant to undertake ... roles" with the Body in future if they felt that "personal communications intended to be confidential, which are received in confidence, taking place after investigations have concluded, will fall to be released under the FOI Acts". It said that, thus, the "public interest is better served by withholding this record from release, pursuant to section 26(1)(a) of the FOI Acts." The third party made very similar arguments. He said that he believed it would "not be in the public interest [to release the withheld record] in the particular circumstances of [this] case"; and that its release "would, almost certainly, be likely to prejudice [his] giving of further information to [the Body]" and "could also dissuade one from accepting future invitations to act as third-party Assessors/Investigators in complex cases such as this, going forward."
Firstly, arguments as to what may or may not be in the public interest are relevant only when one accepts that a record is exempt from release in the first place. It is in the context of considering the fourth test, which is required to be met in order for a record to be exempt under section 26(1)(a), that details were sought of why the Body formed felt it was of importance that it continue to receive further similar information to that in the withheld record. In this regard, section 34(12) requires that a public body must not merely state that it holds a particular opinion, but must also justify how it arrived at that opinion.
I can accept that, on occasions, it may be of importance to a body to continue to receive certain information from third parties, such as those who conducted particular investigations on behalf of the body, after their work has concluded. For instance, a body may seek clarification on a particular issue that only the third party can provide. However, it is worth repeating that the Body appears to accept that it is not necessary for it to continue to receive information such as that contained in the withheld record. Alternatively, a service provider may need to contact a public body, after conclusion of a contract, in relation to some matter that may be of a commercially sensitive or even personal nature, to which provisions of the FOI Act other than section 26 may be relevant. However, these are not relevant contentions in the case at hand. Neither has it been explained by the Body why it considers that service providers would be reluctant to carry out a service for it in accordance with an agreed contract for service. Such a contract would set out the rights and obligations applicable to both the service provider and the Body in the course of the performance of their functions, including those in relation to the provision to the Body of all necessary information (and to which, it should be noted, section 26(1)(a) cannot apply, having regard to section 26(2)).
Having considered the arguments made and the requirements of section 34(12) of the FOI Act as set out earlier, I do not consider that sufficient argument has been made by the Body (or indeed the third party) for me to accept that it is necessary for the Body to continue to receive information such as that in the withheld record. Thus, I find that the fourth test, necessary for section 26(1)(a) to apply, has not been met, in which case section 26(1)(a) cannot apply to that record. In such circumstances, it is unnecessary for me to consider section 26(2), or the public interest test at section 26(3) of the FOI Act. I also note that no arguments have been made that section 26(1)(b) applies, nor have any other provisions of the FOI Act been cited by the Body or the third party. Accordingly, I find that the withheld record is not exempt under the provisions of the FOI Act.
Having carried out a review under section 34(2) of the FOI Act, I hereby annul the Body's refusal of the withheld record, and direct that it be released.
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.
Stephen Rafferty
Senior Investigator