Case number: 160149
The applicant submitted a request to the HSE on 1 October 2015 for all information regarding an incident on 13 March 2015, and specified that he was seeking, in particular, details of a conversation between named ambulance crew staff and ambulance control centre staff.
On 19 February 2016, the HSE decided to refuse the applicant's request under section 30(1)(b) of the FOI Act. The applicant sought an internal review of the HSE's decision on 3 March 2016. The HSE issued an internal review decision on 26 April 2016 wherein it affirmed the original decision to refuse the request. The applicant sought a review by this Office of the HSE's decision on 4 April 2016.
In carrying out my review, I have had regard to the correspondence between the HSE and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the HSE. I have also had regard to the content of the records identified by the HSE as having been considered in the processing of the request.
This review is solely concerned with whether the HSE was justified in its decision to refuse access to records relating to a specific incident on 13 March 2015 under section 30(1)(b) of the FOI Act.
In correspondence with this Office, the HSE stated that it considered only three records when processing the request, namely three recordings held on the ambulance control system relating to the incident identified by the applicant. Following further enquiries by Mr Art Foley of this Office, the HSE confirmed that it located a number of other records coming within the scope of the applicant's request that had not been considered during the course of its original and internal review decisions. Accordingly, I am satisfied therefore that the appropriate course of action to take is to direct the HSE to undertake a fresh, first instance decision in relation to these records in accordance with the provisions of the FOI Act.
Section 30(1)(b) provides for the refusal of a request if access to the record could reasonably be expected to have a significant, adverse effect on the performance by the body of any of its functions relating to management (including industrial relations and management of its staff). Where a public body relies on section 30(1)(b), it should first identify the potential harm to the performance of any of its functions relating to management that might arise from disclosure of the information at issue and secondly consider the reasonableness of the expectation that the harm will occur. In identifying the harm, it should identify the significant adverse effect on its management functions.
In examining the merits of an FOI body's view that the harm identified could reasonably be expected by the release of records, the Information Commissioner does not have to be satisfied that such an outcome will definitely occur. The test 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 sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations.
The records at issue in this review are three recordings of conversations between ambulance crew staff and ambulance control centre staff held on the ambulance control system. The HSE stated that such recordings are stored and retained for the purpose of patient safety, crew and control safety, service audit and to ensure the smooth and efficient management and running of the ambulance emergency service. It argued that the release of the records at issue would cause issues with staff communication, and impact on its ability to manage the staff and resources of the Ambulance Service. In particular, it argued that the release of these records would cause difficulties with staff communicating with Ambulance Control.
The HSE explained that outside of normal working hours, the National Emergency Operations Centre (NEOC), also known as Ambulance Control, is responsible for the management of all resources, both staff and vehicles. It explained that NEOC organises and directs its resources in order to provide the best clinical care for patients and to ensure the most appropriate response to members of the public, by ensuring that there is the requisite combination of clinical skills in ambulances, and directing ambulances to the correct locations. It stated that the accurate communication of information to and from ambulance crews is key to the effective and efficient running of the National Ambulance Service and that the free flow of information between NEOC and ambulance crews is required at all times. Where issues surrounding staff shortages and cover arise while NEOC is responsible for the operation of the Service, NEOC staff liaise with crew staff to ensure the service is maintained and performs effectively.
Where unexpected staff shortages occur outside of normal office hours, NEOC staff communicate with crew staff to ensure an efficient service is provided. The HSE argued that without this interaction, staff deficiencies at short notice would not be addressed and this would impact on the service the Ambulance Service provides. The HSE stated that the functioning of NEOC and its ability to manage staff in such circumstances is of paramount importance to the delivery of ambulance services. It argued that if the transcripts of NEOC or crew staff recordings are released for a purpose not already agreed with by staff, NEOC staff and crew staff would be less forthcoming when engaging in conversations about cover where staff shortages occur out of hours. It considered that release of the records would undermine and adversely affect the trust between the staff and management of the Ambulance Service in relation to their discussions and conversations over the control system. It contended that this could reasonably be expected to have significant adverse impact on the effectiveness of the Ambulance Service as it is a key component of the service that staff participate in this operational role to manage this service outside of normal working hours.
The HSE further argued that the release of the records would have a significant adverse effect on the management of the HR Grievance Procedure with which the applicant was engaged. It stated that in general the management of a grievance is primarily a verbal process. An employee makes a complaint or raises a grievance which is expressed directly to their line manager with witness support where relevant. A meeting is arranged with the aggrieved party (Stage 1). Where Stage 2 is invoked this also involves a meeting to discuss the issue with senior management. Where there is another party to the grievance he/she has a similar opportunity to discuss the issue, rather than referring to recordings or a written document. The HSE stated that it would never have been the case to revert to recordings held on NEOC's system as evidence to support a grievance claim. The use of these recordings for the purpose of investigating staff grievances or to support a grievance claim/case was not anticipated by the HSE. The resolution of issues are determined by management following engagement with the complainant and the other party to the grievance, usually through interview. The service is not reliant on recordings, video footage, CCTV or any other means for a determination.
In the particular circumstances of this case, I am satisfied that the release of the records at issue, in circumstances where it was not envisaged or intended that the recordings would be used for a purpose other than those agreed, could reasonably be expected to adversely affect the ability of the HSE to effectively manage the staff and resources of the Ambulance Service. I accept the HSE's argument that the release of the records could reasonably be expected to undermine and adversely affect the trust between the staff and management of the Ambulance Service in relation to their discussions and conversations over the control system in relation to matters such as those discussed in the records at issue. I would add that this does not mean that I accept that all such recordings are exempt from release as a class. Regard must be had to the contents of each record at issue and the particular circumstances arising. Nevertheless, I accept in this case that the release of the three records at issue could reasonably be expected to give rise to the harm identified. I find that section 30(1)(b) of the FOI Act applies.
Section 30(2) of the FOI Act provides that the exemptions contained in subsection (1) shall not apply in relation to a case in which, in the opinion of the FOI body concerned, the public interest would, on balance, be better served by granting rather than by refusing to grant the request. As a general proposition, I agree that there is a public interest in public bodies operating in an open and transparent manner. However, the Act requires that the public interest in releasing information which might contribute to such openness and transparency must be balanced against the harm which might be occasioned by its release, which under the FOI Act amounts to disclosure to "the world at large".
There is a significant public interest in ensuring that the Ambulance Service performs its role relating to management and industrial relations effectively and efficiently. As the HSE itself stated, the functioning of the process of ensuring appropriate cover out of hours is paramount to the delivery of the emergency ambulance service to members of the public. Consequently, I find that the public interest would not, on balance, be better served by the release of the records at issue. I find, therefore, that the HSE was justified in refusing the request.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE to refuse the applicant's request for the three records subject to this review under section 30(1)(b) of the FOI Act. I direct the HSE to undertake a decision-making process in respect of other records within the scope of the applicant's request, and to inform him of the outcome of its decision, in accordance with section 13 of the FOI Act.
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 not later than four weeks after notice of the decision was given to the person bringing the appeal.