Case number: 150432
On 6 November 2014, a journalist made an FOI request to the HSE asking "[h]ow much was provided by the HSE" to two named IMO companies i.e. mygp.ie Ltd and Irish Medical Educational Services Ltd. The request went on to read as follows:
"Payments by year for each
The purpose of the payments
If any money has been returned
Any value for money audits
Any correspondence between HSE & IMO/or on these companies".
The HSE, presumably, took this as a request for records containing the information specified above. However, its decision on the request was annulled by this Office on 5 October 2015 because of procedural failings (Case No. 150279 refers). It was remitted to the HSE for fresh consideration.
On 27 November 2015, the HSE made its decision, having consulted with the IMO and also having provided it with copies of the 40 records it had identified as relevant to the request. The decision said that 16 records were being fully released ("section 1" of the HSE's schedule of records refers), and that 12 records were being released subject to the redaction of details the HSE considered to be outside the scope of the request or to attract legal professional privilege ("section 2" of its schedule of records refers). The HSE's decision also said that it intended to release the remaining 12 records ("section 3" of its schedule of records refers), subject to the redaction of information considered to be outside the scope of the request, and to any appeal that the third party might make to this Office regarding the release of the remainder of these 12 "section 3" records. On 11 December 2015, the third party made an application to this Office, through its solicitors, seeking a review of the HSE's decision to release records affecting its interests.
Although this Office generally does not disclose the identity of third parties appealing against the decision of an FOI body to release records, it is self-evident that the applicant for review in this case must be the party named in the request. Accordingly, I have not anonymised any references to the IMO in this decision.
On 2 February 2016, the original requester told this Office that he was no longer interested in receiving details about mygp.ie. The HSE subsequently identified those elements of the 12 records that remain at issue. It also provided relevant details to the IMO.
I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above; to correspondence between this Office, the HSE, the IMO and the original requester and to copies of the records, which were provided to this Office for the purposes of this review. I have had regard also to the provisions of the FOI Act. This Office's contacts with the IMO were all through the IMO's solicitor, and references to the IMO should be read accordingly.
The 12 "section 3" records were referred to in the HSE's decision of 27 November 2015 as records 29 to 40.
Certain of these records date from 2000 to 2002. They appear to concern the payment of monies by the General Medical Services (Payments) Board (the GMSB) rather than by the HSE, which was created in 2005.
In Case No. 150020 (see http://www.oic.gov.ie/en/Decisions/Decisions-List/Ms-Q-and-the-Health-Service-Executive.html) this Office accepted the HSE's argument that records relating to payments made by the GMSB from 2002 to 2004 did not fall within the scope of that request. The request concerned sought details of all monies given by the HSE to the IMO from 2003 to 2014.
Noting that the request in this case similarly sought details of payments "provided by the HSE", this Office asked the HSE to confirm if it still considered the records dating from 2000 to 2002 to be relevant to the request. It sought to differentiate the circumstances of this case from that of the previous one and said that the request in this case sought details of payments made under two particular sub-schemes of "of a bigger scheme called the IDTS". The HSE said it "had stepped into the shoes" of the GMSB in terms of administering those sub-schemes, and had found itself in dispute with the IMO in relation to an entitlement asserted by the latter to receive ongoing payments under one of the sub-schemes concerned. Thus, its position is that all of the records are within the scope of the request.
I note that the IMO specifically referred this Office to the decision in Case No. 150020 on 7 January 2016. This was, however, in the context of arguing that release of information concerning mygp.ie (subsequently excluded from the review by the original requester) would breach a duty of confidence existing further to an agreement. The IMO did not argue that any of the records at issue should be excluded from this review.
I am therefore proceeding to consider the 12 records concerned. According to the HSE, what remains at issue after exclusion of details outside scope and details concerning mygp.ie, is as follows:
Record 29: Letter from the IMO, addressed to the GMSB, dated 16 June 2005 and two invoices dated June 2005;
Record 30: Parts of a letter from the IMO, addressed to the GMS Division of the Department of Health & Children, dated 24 January 2002, and two invoices dated January 2002 and November 2001 (as opposed to the invoices in record 29, these were issued to the IMO by third party suppliers);
Record 31: Letter to the GMSB from the GMS Division of the Department of Health & Children, dated 26 February 2002 and one undated invoice (again, as opposed to the invoices in record 29, this was issued to the IMO by a third party supplier);
Record 32: Letter from IMO addressed to the GMSB dated 29 November 2001 and two copies of two invoices dated November 2001 (similar invoices to those in record 29);
Record 33: Letter to GMSB from GMS Division of the Department of Health & Children, dated 26 February 2002 and two invoices dated July 2001 (similar invoices to those in record 29);
Record 34: Part of letter from HSE to the IMO dated 31 May 2006;
Record 35: Letter to HSE dated 14 November 2005 and two attached notes (bearing page numbers 30-35);
Record 36: Letter to GMSB from Department of Health & Children dated July 2001 and points 2; 6; and 8 to 10, and associated footnote, of an attached Department of Health & Children note dated 12 July 2001:
Record 37: Point 4 of Department of Health & Children Meeting Note dated 29 November 2001;
Record 38: Elements of a hand-written Department of Health & Children note dated 11 September 2001;
Record 39: Letter to IMO from GMS Division of the Department of Health & Children, dated 15 June 2000; and
Record 40: Elements of a letter from the IMO to the GMSB dated 3 August 2000.
The review will consider whether or not the IMO has shown to my satisfaction that the HSE's decision to release the above was not justified. Unless otherwise stated, a reference to any record is to be taken as a reference to any elements of it, as listed above, that are under review.
A Case to Which Section 38 Applies
Section 38 requires consultation with an affected third party where an FOI body is considering the release, in the public interest, of records containing information that appears to be exempt under section 35, 36, or 37. If the body decides to release any or all of those records following consultation, the party to whom the records relate has a right to seek a review by this Office of the body's decision.
When it initially consulted with the IMO, the HSE indicated that, while it considered sections 35 and 37 to apply to the records, it felt that the public interest would be best served by releasing them. Its ultimate decision, however, was that it did not consider the records to be exempt from release in the first place. It also said that, without prejudice to that view, it would consider the public interest to warrant their release in any event. I am satisfied, nonetheless, that this is a case to which section 38 of the FOI Act applies.
At the outset, it is relevant to note a number of preliminary matters.
Section 22(12)(a) of the FOI Act provides that the FOI body's decision to grant a request is presumed to have been justified unless the person to whom the records relate shows to the Commissioner's satisfaction that the decision was not justified. Effectively, this provision places the onus on the applicant for review to show that the records concerned should not be released on the basis that, at the time of this Office's decision, the records contain confidential information (section 35 of the FOI Act refers), commercially sensitive information (section 36 refers), or personal information (section 37 refers) and that the public interest does not weigh in favour of their release. However, no party to a review has a right of veto over release of records.
It should also be noted that any review conducted under section 22 of the FOI Act is de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision by this Office.
While the FOI Act requires the Commissioner and his Office to provide reasons for decisions, section 25(3) of the FOI Act also requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Thus, I cannot describe the records at issue in this case in great detail. However, I have had proper regard to the requirements of section 22(12)(a) of the Act, as set out above.
Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). Certain details have been excluded from the records at issue on the basis that, as they concern mygp.ie, they are no longer at issue. In so far as the remaining details are concerned, it should be noted that I take the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from such details for the purpose of granting access to those particular sentences or paragraphs.
Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.
The IMO Submissions
The IMO made a submission to this Office on 11 February 2016, shortly after its application for review had been accepted. To make sure it was aware of the requirements of section 22(12)(a), on 1 June 2016 the Investigator offered the IMO a further chance to make a submission. I understand that the HSE, around this time, also provided the IMO with further copies of the 12 records, from which it had redacted any references to mygp.ie.
The HSE also asked the IMO if was prepared to consent to the release of the details remaining at issue. This Office allowed additional time to enable the IMO to consider consenting to release. It did not consent. The IMO's letter to this Office of 29 July 2016 said that paragraphs 9(ii) and 16-23 of its February submission explain why it considers section 35 to apply. The July letter also contained arguments in relation to section 36(1)(b). It is worth saying at this point that I am satisfied that the IMO, via its solicitor, had adequate opportunity to make any arguments it considered necessary in this case.
Paragraphs 9(ii) and 16-23 are concerned with the application of section 35(1)(a) to what was described as "commercially sensitive information of third parties which was furnished to the HSE on what the IMO understood to be a confidential basis." I have had regard to these paragraphs in considering the application of section 35(1)(a) to the records and to the remainder of the submission in so far as it is relevant, including the brief comments on the public interest.
The IMO's July letter also commented on the public interest defence. However, this is relevant only where one is considering the release of information that is subject to a duty of confidence (section 35(1)(b) refers). In this regard, the Investigator's letter of 1 June 2016 told the IMO that it "should clarify what records/parts of records ... it considers to be exempt at this point in time under sections 35(1)(a) or (b) of the FOI Act." The IMO's reply did not identify any material it considered to be exempt under section 35(1)(b), or put forward arguments regarding the existence of any type of duty of confidence in respect of the information in the records at issue. I do not believe it necessary to consider section 35(1)(b) accordingly, neither is there any need for me to consider the IMO's arguments concerning the public interest defence.
Finally, as the IMO's July letter only made arguments in respect of section 36(1)(b), my decision will not consider the other sub-sections of section 36(1).
Section 35(1)(a) of the FOI Act provides for the mandatory refusal of a record containing information:
Section 35(1)(a) does not apply to records created by an FOI body in the course of the performance of its 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 FOI body, or a head or a director, or member of staff of, an FOI body"(section 35(2)).
The cover letters in records 31 and 33, and records 34, 36, 37, 38 and 39 in full, were created by FOI bodies (the HSE or Department of Health & Children). Section 35(1) cannot be applied to these records unless their release would breach a duty of confidence owed to a third party. The HSE, which decided to release the records, clearly does not consider that such a breach would arise. The IMO's submissions do not refer to any duty of confidence, whether provided for by an agreement or statute or otherwise by law, that it claims to exist in this case, which concerns the potential expenditure of State monies. Thus, further to section 35(2), I have no reason to consider section 35(1) to have any potential application to the above records.
Section 35(1)(a) is, however, capable of being applied to records 29, 30, the remainder of 31, 32, the remainder of 33, 35, and 40, all of which were created by non-public sector entities.
According to paragraphs 9(ii) and 16-23 of the IMO's February submission, it considers the records to relate "to sensitive price information of third parties which was furnished by the IMO to the HSE on what the IMO always understood to be a confidential basis." It says the information concerned "was highly sensitive price information at the time it was furnished" to the IMO, which "underpins the confidential character of this information". The IMO says that the information was "furnished to the IMO on the basis that its confidentiality would be appropriately protected both within the IMO and by any third parties with whom it was shared". It says that the information concerned "was furnished onwards to the HSE on this basis" and on the understanding that the HSE would treat it as confidential. It also maintains that if the HSE were to fail to protect information that was given confidentially, this would prejudice the giving to the HSE of further similar information whether from the IMO or other organisations with which the HSE engages.
The above arguments seem to be concerned with the protection of information concerning arrangements the IMO itself had entered into with third parties, and the prices it paid to those third parties. The first and second tests of section 35(1)(a) may be met in relation to particularly detailed accounts of arrangements entered into between the IMO and third parties that supplied it with goods and services. I am not satisfied that the records at issue contain such a level of detail. In any event, I consider none of the records concerned to meet the third test of section 35(1)(a).
Before I explain why I consider this to be so, I also wish to comment on the possibility that the IMO's arguments on confidentiality might extend to details of arrangements between it and State bodies responsible for administration of the relevant funding. I would not accept whatsoever that details of State monies sought by or paid to the IMO, and the arrangements by which such payments may be made, is information that is confidential to the IMO. Neither would I consider any information so provided to have been provided on the understanding that it would be treated as confidential by the relevant body. Certainly, the HSE seems to have no such understanding. The records date from well after the HSE and its predecessor Health Boards had become subject to the requirements of the FOI Act in October 1998. By the time the records were created, several decisions of the Commissioner had issued emphasising the need for openness and transparency in public affairs, especially in relation to the payment of public monies.
Returning to the third test, the IMO claims that the release of the details at issue "would clearly prejudice the giving to the HSE of further similar information, whether from the IMO or other organisations with which the HSE engages". I do not accept this. When a person or organisation is seeking to obtain public monies, it is in their interests to provide the relevant body with all appropriate supporting information and documentation and to fully respond to requests for further information. The IMO has not explained how it, or others, might refuse to provide information that is in their interests to provide.
Furthermore, no argument has been made that the details at issue include information above and beyond what the IMO was required to provide in order to seek the relevant funding. In any event, it would arguably not be of importance to the relevant public body that it continues to receive such additional details, in which event the fourth test of the exemption would not be met.
Failure to meet any one of the tests of section 35(1)(a) is sufficient for me to find that the exemption cannot apply to a record. Having regard to the above, I do not consider section 35(1)(a) to apply to any of the records.
Section 36(1)(b) is a mandatory exemption that must be applied to certain types of information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release.
The harm test in the first part of section 361(b) is that disclosure "could reasonably be expected to result in material loss or gain". The Commissioner takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable.
The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption. However, the Commissioner takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.
In the High Court case of Westwood Club v The Information Commissioner  IEHC 375 Cross J. held that it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. A party opposing release should explain why disclosure of the particular records could prejudice their financial position.
The IMO's letter of 29 July 2016 argues that the details at issue should not be seen as historic when considering the application of section 36(1)(b) of the FOI Act. It maintains that the records "clearly contain commercially sensitive information in relation to the structures that were in place, arrangements between parties and pricing. The fact that these took place at some remove in time is not a relevant factor particularly in circumstances where the prices which were involved at that stage bear a similarity to those prices now in place following the economic down turn between the years 2008 and 2014. In the circumstances, pricing structures today are similar and the release of the information would be detrimental to the parties concerned to [the IMO]."
Structures & Arrangements
It seems to me that the IMO's concerns are directed at the release of details of details concerning "structures" and "arrangements" it had in place with its own contractors. I do not consider the records to contain such a level of detail however, beyond identifying third parties engaged by the IMO to provide particular goods or services. The IMO has not explained how revelation of such information could impact on it (or any related IMO companies) or the relevant third parties. I see no reason to find section 36(1)(b) to apply to such details. The IMO's concerns about details concerning "structures" and "arrangements" could also extend to prices so agreed, which I deal with below.
In so far as the arguments might also have been intended to refer to the structures and arrangements in place between the relevant State body and the IMO, it is relevant that the HSE's decision says that payments of the sort specified in the request "have long since been discontinued". Thus, the particular structures and arrangements between the IMO and HSE are presumably no longer in place. One way or another, the IMO has not explained the release, at this point in time, of details of such "structures" or "arrangements" "could reasonably be expected to result in material loss or gain" to the IMO, or "could prejudice [its] competitive position".
Some of the records disclose certain aspects of the prices agreed between the IMO and its suppliers. The question is whether release of those details could cause the IMO, or the third parties, harm if they were to be released now.
It is appropriate here to refer to the comments of Mr Justice Kearns in the Supreme Court judgment in Sheedy v Information Commissioner  IESC 35. In referring to a provision of the Freedom of Information Act 1997 and 2003 which provided for the refusal of records that, if released, "could ... reasonably be expected to prejudice" particular functions of a public body, Kearns J. said 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...".
I note the IMO's claim that the prices in the records at issue, albeit 11 to 16 years old, are similar to prices now in place. It did not support this general assertion such that one could readily see how release of the details concerned could impact on the IMO, or its suppliers, today. For instance, it could have provided this Office, on a confidential basis, of an example of the "similarity" between current prices and those in the records.
While it is generally accepted that prices, wages, etc. fell due to the recession, it is not at all clear to me that the specific prices at issue are similar to prices for such goods and services today. That said, there is a low threshold required for me to find that release of a record "could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation". In the circumstances, I very reluctantly accept the IMO's argument regarding the current relevance of the prices concerned.
Current or not, the IMO has not explained how release of details of monies sought by or paid to it could result in any of the harms that are envisaged by section 36(1)(b), in so far as the IMO (or IMO companies) is concerned. However, such details must also show the prices charged to the IMO by its suppliers. I accept that such information would not generally be known to the suppliers' competitors and that disclosure to the world at large of historic prices claimed to be equivalent to current prices could prejudice the competitive position of those suppliers in the conduct of their professions or businesses or otherwise in their occupations. For this reason only, I find details of State monies sought by, or paid to the IMO to be exempt under section 36(1)(b). I also accept, for the same reason, that section 36(1)(b) applies to any information in the records that gives a more detailed breakdown of prices charged to the IMO by its suppliers. I will refer to these two types of information as "price information" in the rest of this decision. The application of section 36(1)(b) is subject to consideration of sections 36(2) and 36(3) of the FOI Act, however.
For avoidance of doubt, I therefore find that section 36(1)(b) does not apply to the remaining details in the records. This includes information concerning the arrangements between the IMO and the relevant bodies, the identities of third party suppliers with which the IMO did business, and the general nature of the particular goods or services obtained from those suppliers by the IMO accordingly.
Sections 36(2) and (3)
Section 36(2) provides that details to which section 36(1)(b) applies may be released if (a) the party to which the information relates consent to the release of the details concerned; (b) information of the same kind as that at issue in respect of persons generally or a class of persons that is, having regard to all the circumstances, of significant size, is available to the general public; (c) the record relates only to the requester; (d) the information at issue was given to the body by the person to whom it relates and the person was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public; or (e) disclosure of the information concerned is necessary in order to avoid a serious and imminent danger to the life or health of an individual or the environment.
I do not consider any of these exceptions to apply in the case at hand, nor has the original requester made any argument that they are relevant.
Section 36(3) provides for release of a record to which section 36(1)(b) applies where the public interest would, on balance, be better served by granting than by refusing to grant the request concerned.
The July 2011 Supreme Court judgment, in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner, 1 I.R. 729,  IESC 26), has indicated that I must distinguish private interests from "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. " Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.
In favour of granting a request is the public interest in ensuring the openness and accountability of FOI bodies. Although the GMSB was not subject to FOI, in this case I consider it relevant that HSE, which is an FOI body, considers itself to have "stepped into the shoes" of that body. The IMO has not made any arguments that I should take a different approach.
The public interest in favour of release has to be balanced against the public interest, recognised by section 36(3) of the Act, in protecting the release of information to which section 36(1)(b) applies. The question I must consider is whether the public interest served by directing the release of information that I have found to be exempt under section 36(1)(b), sufficiently outweighs the public interest in protecting that information.
The IMO's February submission claims that "the specific characteristics of the funds at issue" are such that the public interest does not warrant release of the details at issue. It also maintains that information in the public domain satisfies the public interest.
The February submission did not elaborate on the "specific characteristics of the funds at issue", however. Thus, I had regard to the IMO's comments on this issue in its submission to the HSE, dated 6 November 2015. That submission says that the funds "were top-sliced, not granted, funds and should properly be considered as belonging to the general practitioners as a group, rather than to the State, the Department or the HSE." It says that this "position was accepted by the then Minister for Health", and refers to a 2004 speech as evidence for this contention.
The speech concerned is entitled "Launching the IMO Website 'mygp.ie'". It refers to "[t]his project [having been] facilitated by the use of savings accumulated by general practitioners who participate in rational prescribing as part of the Indicative Drugs Savings Scheme". It is not at all clear to me that the Minister's comments have any relevance to the records at issue, which do not contain any information concerning mygp.ie. In any event, I cannot accept the IMO's position that the monies "belong... to the general practitioners as a group". While GPs may well have achieved savings in certain areas that were used in the development and launch of the mygp.ie website or other initiatives, the monies ultimately derive from the State and are public monies.
There is a public interest in ensuring openness and accountability, which in my view carries additional weight regarding details concerning the management and expenditure of public monies. This public interest has been served to a certain extent by the material released to date. While the IMO maintains that information in the public domain fully satisfies the public interest, I consider that the public interest in ensuring openness and accountability could be served further in this case by release of the price information.
However, release of the price information would not only disclose non-exempt information about what the IMO sought and/or was paid, but would also disclose, essentially to the world at large, what I accept to be commercially sensitive information about parties that supplied goods or services to the IMO. This Office takes the view that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations and was not, in general terms, designed as a means by which the operations of private enterprises were to be opened up to scrutiny. That is not to suggest that the disclosure, in the public interest, of some exempt third-party information may not be warranted in the circumstances of a particular case.
Having carefully weighed the competing public interest factors in favour of and against release, in the circumstances of this case I consider the appropriate balance to strike is to direct the release of the price information except for the more detailed breakdowns of the basis on which the third party suppliers calculated the prices they charged the IMO. I direct that the following should be withheld, accordingly:
Record 30: Third party invoice dated 17 January 2002: Figure quoted for daily rate; Invoice dated 27 November 2001: Breakdown of details leading to the "Sub-Total" figure"; and
Record 31: Third party invoice: Details in the four columns of figures leading to the "NET" figure was arrived at.
The IMO's application for review and February submission say that the HSE's decision did not confirm the extent to which it had redacted information that the IMO considered to be personal information.
As already explained, my review is concerned only with those details that the HSE decided to release in the public interest. The Investigator's email of 1 June 2016 asked the IMO to identify any personal information it considered to be in the records that were at issue at that point, and to make relevant submissions. Its reply of 29 July 2016 did not do so. I have no reason to consider the records to contain personal information in the circumstances, and therefore I have no basis to find any of the details at issue to be exempt under section 37.
Having carried out a review under section 22(2) of the FOI Act, I vary the HSE's decision and direct that it release the records at issue subject to the redaction of the following details:
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.