Case number: 130173
This review arises from a decision made by the HSE on 27 June 2013 to release records following a request to which section 29 of the FOI Act applies. Section 29 of the FOI Act applies to FOI requests where the public body has decided that the record(s) in question qualify for exemptions under one or more of the relevant exemptions in the FOI Act (i.e. sections 26, 27 and 28 - relating to information that is obtained in confidence, commercially sensitive or is personal to the third parties, respectively) but that the record(s) should be released in the public interest.
Where section 29 applies, the public body is required to notify an affected third party before making a final decision on whether or not the exemption(s), found otherwise to apply, should be overridden in the public interest. The requester or an affected third party, on receiving notice of the final decision of the public body, if they so wish, may apply for a review of that decision to this Office directly.
On dates in May and June of 2013, the HSE received four separate requests under the FOI Act for the release of audit reports. The HSE's decision maker formed the opinion that section 27 of the FOI Act applied to one of the records coming within the scope of the request, as its release could potentially affect the commercial interests of third parties, including the applicant. He concluded that the request was one to which section 29 of the FOI Act applied and undertook a process of formal consultation with the third parties involved. Accordingly, on 4 June 2013, he wrote to the applicant enclosing extracts from the record that he deemed to be relevant, setting out his preliminary view in relation to the matter and soliciting the applicant's submissions.
The applicant responded by way of letter dated 24 June 2013, setting out a number of specific complaints regarding the content of the record in question and submitting that, "[d]isclosure of the record would be harmful to [the applicant's] interests and does not present a balanced view as outlined in [the applicant's] documentation".
The HSE's decision issued on 27 June 2013 in relation to the FOI requests it had received. The decision maker applied the public interest test contained at section 27(3) in favour of the release of the record, having regard to the "accountability of administrators and the scrutiny of the decision making process". He further stated that "the full report addresses some of the general concerns" reflected in the applicant's submissions. Therefore, the decision maker directed the release of the record in question. The applicant lodged an application for review with this Office on 4 July 2013.
I note that Mr. Niall Mulligan of this Office conveyed his preliminary views to the applicant by way of letter dated 7 May 2014. The applicant responded by way of letter dated 15 May 2014, reiterating his submissions and making it clear that he did not accept Mr. Mulligan's conclusions.
I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to the applicant's submissions to this Office and to correspondence between the applicant and the HSE. I have also had regard to the content of the HSE internal audit report at issue and to the provisions of the FOI Act.
The applicant has raised concerns as to the substance of the record and regarding the HSE's procedures relating to the preparation of the record. These matters are beyond the scope of this review. The role of this Office is to assess the decision in light of the provisions of the FOI Act, and in particular the exemptions which the applicant claims should apply.
The applicant brought this application on behalf of a firm. All references to the applicant in this decision should be taken as equally referring to that firm.
The record which is the subject of this review is an audit report, prepared by the HSE. The scope of this review is confined to assessing whether the HSE was justified in its decision to release the internal audit report. Specifically, I must consider whether the record is exempt from release pursuant to section 27(1)(b) the FOI Act as commercially sensitive information, and, if so, whether the public interest would be better served by release or non-release of that information.
Section 34(12)(a) of the FOI Act provides that a decision to grant a request to which section 29 of the Act applies is presumed to have been justified unless the person appealing that decision shows to the satisfaction of the Commissioner that it was not justified. While the HSE concluded that the internal audit report contained commercially sensitive information concerning the applicant, it decided to release the record in the public interest, in accordance with the provisions of section 29 of the FOI Act.
The HSE's decision maker took the view, given the general tenor of the applicant's submissions to that body, that the applicant's objections are most appropriately framed in terms of section 27 of the Act. Section 27(1) provides:-
"Subject to subsection (2), a head shall refuse to grant a request under section 7 if the record concerned contains...
(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 my view, section 27(1)(b) is of more assistance to the applicant than 27(1)(c). The applicant did not make the case that any specific prejudice arises to him in relation to the conduct of any particular negotiations or other commercial interactions. In Electricity Supply Board (ESB) and Department of Public Enterprise (Case 98197, available from <www.oic.ie>) the then Commissioner stated that he "would expect that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure [and that he] would also expect such a person to be able to explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations." It does not appear to me from the applicant's submissions that this test has been met.
The applicant's primary concern is an apprehension of general reputational damage, within the terms of section 27(1)(b). The applicant submits that the release of the record "will lead to ill-informed conjecture ... [and] ill-informed speculation". In Henry Ford & Sons Ltd, Nissan Ireland and Motor Distributors Ltd and The Office of Public Works (Cases 98049, 98056, 98057), the Commissioner held that:-
"[T]he essence of the test in section 27(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The subsection protects information whose disclosure might 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."
In Electricity Supply Board and Department of Public Enterprise(see above), the Commissioner held that the possibility of "unwelcome publicity" alone would not be sufficient to satisfy the requirements of section 27(1)(b). Rather, it is necessary to point to the specific possibility of harm. However, the standard of proof in relation to section 27(1)(b) is not a particularly onerous one, with an applicant being required only to demonstrate the possibility of prejudice or pecuniary harm. On balance, I am of the view that this "low threshold" has been met and that the applicant has demonstrated a potential prejudice to his competitive position.
Section 27(2) goes on to set out five specific sets of circumstances in which section 27(1) will not apply, none of which appear to me to be relevant to the applicant's case. Section 27(3) provides that the exemption contained at 27(1) will be subject to a public interest test, in the following terms:-
"Subject to section 29, subsection (1) does 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."
The decision maker, in his preliminary view letter, set out various factors informing his application of a public interest test. In his decision, he found in favour of the release of the record in question, citing "the general accountability of administrators and scrutiny of the decision making process".
The application of the public interest test requires that the decision maker consider the general principle, set out in the long title to the FOI Act that the Act is intended to "enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies", but also to consider "on balance" the other rights that may be affected by the release of the record in question (see Sheedy v. Information Commissioner  2 ILRM 374 per Fennelly J and South Western Area Health Board v. The Information Commissioner  2 ILRM 374).
This Office has considered the public interest in relation to health services in cases including Mr. X and the South Eastern Health Board (Case 020533), Dr X and the Midland Health Board (Case 030759), Mr. AA and the HSE (Case 060320) and Ms X and the HSE (Case 090130). As the former Commissioner stated in Case 030759:-
"The performance of our health service, and particularly of the public health service, is of fundamental importance. In principle, providing as much information as possible to the public about that service, and about how the various interests within the service interact, must be regarded as being in the public interest... In my view, there is a very strong public interest served in ensuring the greatest level of transparency possible in regard to the operation of the health service including the manner in which the various sectors within the health service interact. I take the view that such transparency serves the public interest both in relation to the health service which is in the private sphere as well as to the publicly funded health service. In the former case, transparency supports the public interest in ensuring that the private health sector operates in a manner which is competitive, professional and efficient. In the latter case, transparency supports the public interest in ensuring that the public health sector operates in a manner which is professional, fair and gives value for money. In relation to public sector activity, the notions of transparency and accountability are always closely linked."
On the other hand, there is a public interest in members of the public and the business community being able to communicate in confidence with public bodies in relation to sensitive commercial matters without fear of disclosure, and also a public interest in supporting an environment conducive to the conduct of business.
While the applicant has raised a number of issues regarding the substantive content of the record, in my opinion these matters are of very limited relevance to this application. In the recent decision in the case of Mr. P and the HSE (Case 090261), the Commissioner stated that:-
"[H]aving regard to the Rotunda Hospital case ( IESC 26), section 8(4) of the FOI Act, and the limits of my remit, I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances...
... I wish to emphasise that the public interest test does not give me the authority to investigate complaints against public bodies or to act as an alternative dispute mechanism with respect to actions taken by public bodies....
Thus, while I accept that there is a strong public interest in openness and accountability in relation to the manner in which public bodies carry out their functions... this does not mean that it is within my remit as Information Commissioner to determine or to make value judgments as to whether the applicant should have been provided with further personal information in the course of the assessment process or the investigation, whether as a matter of fair procedures, "equality of arms", or simply good administrative practice. It also does not permit me to review the question of whether the outcome of the investigation was correct or not."
I note the applicant's complaint that he was not invited to comment on the contents of the record. However, I equally note the HSE's finding in its decision that the record in question is an internal document, as well as the fact that the record explicitly states at page 4 thereof that:-
"[The record] is intended to be a review of internal HSE operations only. It is not, nor is it intended to be, an appraisal of services provided by any external parties to the HSE, and no inference should be taken from the report or any part thereof in respect of any external party."
The record goes on to state that there is no evidence, nor indeed any suggestion or allegation, of certain categories of misconduct by "any party connected with" the matters at issue.
In reaching my decision, I have had regard to the provisions of the FOI Act and the guidance provided by previous judgments of the Courts and decisions of the Commissioner, including those set out above, and have carefully considered the case made by the applicant in his submissions. I am of the view, on balance, that the applicant has not demonstrated that the public interest would be better served by a refusal to release the record in question than by its release.
For the foregoing reasons, I am of the view that the applicant has not demonstrated in line with section 34(12)(a) of the Act that the decision by the HSE to release the record is not justified and, therefore, that its decision to release the record in this case was justified. I find accordingly.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the HSE to release the internal audit report that is the subject of this review.
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.