Case number: 99273

Report of investigator - whether information given in confidence - whether release would prejudice effectiveness of future investigations - section 21(1)(a) - whether disclosure could have significant adverse effect on functions relating to management - section 21(1)(b) - whether record was prepared by a person providing a service to the Health Board under a contract for services - section 26(2) - the public interest.

Case Summary

Facts

The requester made a series of complaints to the Health Board about a number of health professionals. The complaints were investigated by an independent person who prepared a report for the CEO of the Health Board. The requester sought access to the report. The Health Board granted access to the report subject to deletion of the investigator's account of what the health professionals had said to him. It relied on the provisions of section 21(1)(a), 21(1)(b) and 26(1)(a).

Decision

The Commissioner found that the statements made by the health professionals were made in confidence. He was satisfied that, in these circumstances, the release of those statements could reasonably be expected to prejudice procedures of the kind adopted by the investigator, if they were employed in future investigations. The Commissioner was also satisfied that if such procedures were not available to the Board then it might have to resort to more formal procedures which would be slower and more costly. He was satisfied that such an outcome could reasonably be expected to have a significant adverse effect on the performance of the Board's function of carrying out such investigations.

The Commissioner found that, on balance, the public interest would not be better served by release of the information sought in this case.

The Commissioner found that the record had been prepared by an investigator in the course of the performance of his duties under a contract for services and, hence, section 26(2) applied and the provision of section 26(1)(a) did not apply.

Date of Decision: 03.12.1999

DECISION

Background:

On 19 February 1999, Mr ABL made a request to the North Western Health Board under the Freedom of Information Act, 1997 (FOI Act), for access to a copy of a report concerning the investigation of complaints Mr ABL made to the Health Board about a number of health professionals. The background to the request is that Mr ABL had earlier made five complaints and allegations about the behaviour of two pharmacists and a doctor who practise in the NWHB area. The complaint against the first pharmacist was initially investigated by a doctor working for the NWHB. However, the NWHB later decided that all five complaints/allegations should be investigated by an independent person - and it is this report to which Mr ABL seeks access.

On 1 April 1999, the NWHB refused Mr ABL's request. It claimed that the release of the report could be expected to prejudice the effectiveness of investigations in the future and access was refused, therefore, by virtue of section 21(1)(a) of the Act. It also claimed that the record was exempt by virtue of section 21(1)(b), on the grounds that disclosure could have a significant adverse effect on the performance by the NWHB of some of its functions relating to management. It further claimed that the record was exempt by virtue of section 26(1)(a) on the grounds that the statements given in the course of the enquiry were given in confidence, on the understanding that they would be treated as confidential and that their disclosure could prejudice the giving of further similar information by any persons and that it is important such information should continue to be given.

On 12 April 1999, Mr ABL applied for an internal review of this decision. On 7 May, the internal reviewer informed Mr ABL that it had now been decided to release the report to him subject to deletion of the investigator's address and of that portion of the report which contains the record of the doctor's and the second pharmacist's statements. The internal reviewer relied on the provisions of section 21(1)(a), 21(1)(b) and 26(1)(a) in refusing access to these parts of the report.

In a letter received by me on 18 June 1999, Mr ABL applied to my Office for a review of this decision and I accepted this application on 25 June 1999.

I invited the NWHB to explain more fully the basis for its decision, which it did in submissions dated 8 July, 28 July and 30 November 1999. I summarise these below.

I also invited Mr ABL to make submissions to me which he duly did by an undated letter in July and by letters dated 26 July and 15 October. Much of Mr ABL's correspondence to me consists essentially of complaints about the NWHB and, more particularly, about how it has responded to the investigator's report. I do not repeat these points below because they are clearly irrelevant to the matter which I have to decide.

Mr ABL also made a number of complaints about the delay in dealing with his review. In November he posed a series of questions to my Office on the handling of his review which he said were requests under the FOI Act. It was clear to my officials that some of these 'requests' were, in fact, a plea to have his case dealt with more expeditiously, a plea which I accepted.

In the course of the review Mr ABL indicated that he had obtained the investigator's address from another source and that he had no longer wished to pursue this aspect of the matter. It follows that the sole matter which I have to decide is whether Mr ABL is entitled to access to the parts of the report which record the statements of the doctor and the pharmacist.

Submissions

NWHB's submissions

Section 21(1)(a)

The NWHB says that releasing the statements made to the investigator would indicate to staff and to persons under contract that confidentiality would not be assured in these investigations and, as a result, future co-operation by such persons would be jeopardised. This, it claims, would prejudice the effectiveness of future investigations.

It claims that the ability to give assurances of confidentiality is vital to the effectiveness of inquiries undertaken by the Board. It says that to dispense with the atmosphere of confidentiality could deter persons from co-operating or from speaking frankly to an investigator.

Section 21(1)(b)

The NWHB claims that by releasing the statements in this case, the Board's ability to conduct future investigations involving staff or persons under contract would be "severely hampered" by the absence of guarantees of confidentiality where appropriate. It says that this would "prejudice the effective management of an organisation of which investigations and the ability to carry out same effectively are an inherent part". The NWHB expanded on this claim as follows:

"The methods employed by investigators vary from forensic investigation techniques such as those employed by auditors investigating fraud, medical staff examining patient records or, in the absence of forensic material, by interviews and examination of files and documents. In the case of forensic examination of records, it is not necessary to rely exclusively on the testimony given by participants. However, in some cases the evidence is almost entirely of an interview based nature and it is in these scenarios that the investigator is at the most serious disadvantage. The investigator is faced with interviewing people, against whom allegations may be levelled, and expecting them to co-operate fully and frankly with his enquiries. This method has been used on many occasions in the past three years. Some of the inquiries involved [the investigator], some our Internal Auditor or other Board staff. The reports arising from these investigations have traditionally been confidential to the CEO or senior management and were used to inform further action, if deemed necessary.

It is central to these inquiries that statements given to the investigator are treated in confidence. This is particularly important where the investigation needs corroborative evidence or information of a collateral nature. If the perception was abroad that the Board�s investigator did not respect assurances of confidentiality, those staff who have some discretion as to the level of co-operation they give may decide not to co-operate to the fullest extent possible".

It went on to say

"The Board feels that the public interest would not be better served by release of the sections of the report in question, as the consequences would be that the Board would not be able to carry out such investigations in future. The alternative would be for the Board to abandon inquiries where a guarantee of confidentiality could not be given. In such cases, the Board would have to embark on a sworn inquiry, with legal representation, with consequent costs and the likelihood of such an investigation ending in a legal stalemate. A further alternative would be to turn over relatively premature investigations to the Gardai".

The Public Interest

The NWHB claims that the public interest would not be served by releasing the parts of the report which were withheld. It says that the effectiveness of similar investigations is a matter of public interest. It points out that Mr ABL has been given the bulk of the report including its findings and conclusions.

Section 26

The NWHB claims that both section 26(1)(a) and 26(1)(b) apply in this case. In relation to section 26(1)(a) it accepts that it is not the case that persons giving information to an investigator are always entitled to expect confidentiality. It also accepts that there is an obligation on staff and contractors to co-operate fully in any investigation.

It says that it is satisfied that these statements were made to the investigator in confidence and on the understanding that they would be kept confidential. It contends that a perception among general practitioners and community pharmacists that confidential statements would not be respected would mean that such statements may not be given in the future. It claims that such statements are central to any investigation carried out by the NWHB.

The NWHB contends that, based on the assurance of confidentiality which it says was given to the doctor and the pharmacist concerned, section 26(1)(b) applies. The NWHB also refers to the provisions of section 26(2), which provides that the exemptions in section 26(1) do not apply to certain records created by a public body or a person who is providing a service for a public body. The NWHB states that the exemption in section 26(1) is

"specifically denied staff/contractors where such information is given......in the course of performance of his or her functions... It is open to question whether or not co-operation with an investigation constitutes ...in the course of performance of his or her functions......While it can be argued that all members of staff/contractors are under an obligation to co-operate with such an investigation, in many cases the quality or quantum of that co-operation could hinge on a perception that they would be protected from recrimination or intimidation, in the event that their evidence is unfavourable to another. This is not to say that staff/contractors would enjoy freedom to malign someone with a total guarantee of confidentiality, but, in the main, some measure of confidentiality should be assured.

This leads to the question of the status of [the doctor and pharmacist concerned] in this matter. I would submit that, in relation to prescriptions issued to Mr [ABL], [the doctor] was not under contract to the North Western Health Board as the medical card presented was issued by the Mid Western Health Board and [the doctor] would have been required to submit a "Special Type Consultation" form to the GMS (Payments) Board. I do not believe that this was submitted and accordinglyno contract existed between [the doctor] and this Boardin relation to Mr [ABL]. Similarly, [the pharmacist] dispensed medication on a J numbered card, issued by the Mid Western Health Board and, therefore,his contract was not with the North Western Health Boardin this case. I must, therefore, consider that [the doctor and the pharmacist] are third parties in this matter and that no material supplied by them to [the investigator], in confidence, should be released without their consent which was not forthcoming".

Mr ABL's submissions

Mr ABL made the following points. Although he did not relate them to specific provisions of the Act, it is clear that they relate to the claims to exemption made by the NWHB under section 21(1)(a), 21(1)(b) and 26. I have grouped his arguments under the same headings as I used above in describing the NWHB's arguments, for ease of comparison.

Section 21(1)(a)

Mr ABL says that the argument made by the NWHB in relation to the effect of release on future investigations is "totally contradictory". He points out that the first pharmacist, in fact, refused to co-operate with the investigation.

Section 21(1)(b)

Mr ABL says that he rejects the NWHB's view that release of the disputed parts of the records could "adversely affect the performance of the management of the NWHB".

The public interest

Mr ABL says that the public interest would be better served by release in this case because "where wrong doing is evident, the general public have a right to sight of such". He also claims that he should have a right of access to the report for the purpose of a "right to reply" to anything said by the doctor or pharmacist concerned about him.

Mr ABL also furnished correspondence from the Fitness to Practise Committee of the Medical Council. This included replies which the doctor gave to the Medical Council and which Mr ABL says are inconsistent with the findings of the investigator's report. I express no view on whether there is any such inconsistency because, on the view I take of the matter, it is not necessary for me to do so.

Findings

I will set out my findings in the order in which I summarised the arguments of the parties viz. section 21(1)(a), section 21(1)(b), the public interest and section 26.

Before doing so I will deal with the question of whether the statements of the doctor and pharmacist were made in confidence. The NWHB has informed me that it checked the matter with the investigator and he specifically confirmed that the doctor and pharmacist asserted that their statements were made in confidence. There is no suggestion that the investigator indicated to the individuals concerned that he could not accept their statements on this basis. Having examined the statements, I am satisfied that their contents have the quality of confidence necessary to found an action for breach of confidence. I note also that both the doctor and the pharmacist have been asked to agree to the release of these statements and both have refused. This last point is not, of course, conclusive but taken together with the investigator's confirmation to the NWHB on the point and having regard to the contents of the statements, I find that the statements were made in confidence and on the understanding that they would be kept confidential, in the sense that they would only be disclosed to the NWHB.

Mr ABL says he was never told that the statements which the other participants in the enquiry might make would be made in confidence. I accept that this is the case. However, there was no particular reason why the investigator should raise this point with Mr ABL and I do not consider it of any significance in finding, as I do, that the statements were made in confidence.

Section 21(1)(a)

Section 21(1)(a) of the FOI Act allows a head, subject to consideration of the public interest, to refuse to grant a request for information made under the Act if access to the record concerned could, in the opinion of the head, reasonably be expected to -

"prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of the public body concerned or the procedures or methods employed for the conduct thereof..."

In the case of The Sunday Times Newspaper & Others and the Department of Education and Science (Case Number 98104) I explained the approach which I adopted to applying this exemption in the following way:

"In the Australian case of Re Cockcroft and Attorney General's Department (1986 64 A.L.R.97) the Federal court overturned the Australian Administrative Appeals Tribunal's interpretation [of the phrase 'may reasonably be expected'] which was that an assessment of what was more probable than not was what was called for. In a majority decision, the court held that the words were intended to bear their ordinary meaning and required a judgement to be made "as to whether it is reasonable as distinct from something that is irrational, absurd or ridiculous".

In a minority judgement, Sheppard J suggested that the decision maker must have 'real and substantial grounds' for thinking that the prejudice would occur. In the case of Searle Australia Pty Ltd v Public Interest Advocacy Centre & Anor [(1992) 108 ALR 163] the Federal Court rejected the idea that it was sufficient that there be a possibility not irrational, absurd or ridiculous that the prejudice would occur. It also suggested that the practical application of the majority and minority tests in the Cockcroft case would not necessarily lead to different results.

In the case of Re B and the Brisbane North Regional Health Authority [(1994) 1QAR 279], to which I was referred by the Sunday Times, the Queensland Information Commissioner, having reviewed the relevant Federal case law, including the Cockcroft and Searle cases, took the view that

"The words call for the decision maker.........to discriminate between unreasonable expectation and reasonable expectations, between what is merely possible (e.g. merely speculative/conjectural "expectations") and expectations which are reasonably based, i.e. expectations for the occurrence of which real and substantial grounds exist".

Some care is needed in relying on the dicta which I have just quoted because in the Cockcroft case the majority warned against the dangers of paraphrasing the words under discussion. Nevertheless, it seems to me that the dicta are useful in highlighting that 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 seems to me that in arriving at a decision to claim a section 21 exemption, a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur.

Section 21(1)(a) envisages two potential types of "prejudice" which must be considered by a decision maker in terms of his or her expectations. The decision maker must hold the view that the release of the records will prejudice the "effectiveness" of the investigations or that release will prejudice the "procedures or methods employed for the conduct thereof".

I will deal with the issue of "effectiveness" first. The Oxford English Dictionary defines the word "effectiveness" as "the quality of being effective" with the word "effective" being defined as "concerned with, or having the function of, carrying into effect, executing, or accomplishing". Perhaps a more useful definition of the word "effective" is that found in the Collins English Dictionary which defines it as "productive of or capable of producing a result". It seems to me that the use of the word "effectiveness" in the context of tests and examinations as referred to in section 21(1)(a) of the FOI Act must be interpreted as the ability of the test, examination or audit to produce or lead to a result of some kind........

However, a claim for exemption under section 21(1)(a) could also succeed if there is a reasonable expectation of harm to the "procedures or methods employed for the conduct thereof......"

The approach I adopted in case number 98104 is relevant to this case also.

It is clear from the arguments of the NWHB that it considers that section 21(1)(a) is not aimed solely at current investigations but is apt also to cover future investigations. I accept that this is the case. In its submissions to me it claimed that the ability to give assurances of confidentiality is vital to the effectiveness of investigations undertaken by the NWHB. However, it seems to me that to some extent this is to confuse the effectiveness of an investigation (in the sense of its ability to lead to a result of some kind) with the procedures employed for its conduct. The procedures employed by the NWHB in this case were to engage an independent person, who interviewed the relevant people individually, extended assurances of confidentiality to some of them, and who reported to the NWHB their detailed statements along with a number of findings and recommendations.

It does not seem to me that this is by any means the only procedure which the NWHB could have adopted in order to deal with these complaints/allegations. It might be that a different method of investigation might have been just as, or more, effective in terms of achieving its result. I do not accept that the co-operation of an employee or a contractor against whom a complaint or an allegation of misconduct has been made is a pre-requisite to the effective investigation of the complaint or allegation. Clearly, such co-operation is highly desirable, but if it is not forthcoming then I would expect a public body faced with such a situation to employ alternative means at its disposal to deal with the matter.

However, I think that it is fair to say that the NWHB's concern in this case relates not alone to the question of whether it will be able to conduct investigations effectively in the future, but also to the consequences of release in this case for the kind of procedures adopted in this case. I am satisfied that the kind of procedures adopted in this investigation rely on the parties to whom assurances of confidentiality are extended being satisfied that what they say will not be revealed, to any extent greater than is necessary for the purposes of the investigator making findings and recommendations.

The NWHB argues that breaching confidentiality in this case will have the effect of creating a perception among general practitioners and pharmacists that similar breaches will occur in future. I accept that it is reasonable to expect that release in this case would have that effect.

The NWHB also argues that the result of such a perception would be that pharmacists and general practitioners would not make such statements in the future. At the same time it accepts that such parties are obliged to co-operate fully in any investigation. The apparent contradiction in these claims can only be reconciled on the basis that what the NWHB is really claiming is that these parties would be less frank in their comments in the future or would insist on any statements being made through their legal representatives. I am satisfied that it is reasonable to expect this outcome. Therefore, I am satisfied that release of the disputed parts of the record in this case could reasonably be expected to prejudice procedures of the kind adopted by the investigator, if they were employed in future investigations. Therefore, I am satisfied that the exemption in section 21(1)(a) applies.

As a final comment, I should mention that Mr ABL pointed to the fact that the first pharmacist declined to be interviewed by the investigator. However, it seems to me that this does not invalidate the NWHB's argument.

Section 21(1)(b)

Section 21(1)(b) of the Act allows a head, subject to consideration of the public interest, to refuse to grant a request for information if access to the record concerned could, in the opinion of the head, 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) or,..."

I have already indicated that in arriving at a decision to claim an exemption under section 21(1)(a) of the Act, a decision maker must have reasonable expectations of the anticipated harm arising from release. In my view, in the case of a claim under section 21(1)(b), the establishment of "significant, adverse effect" requires stronger evidence of damage than the "prejudice" standard of section 21(1)(a). In other words, not only must the harm be reasonably expected but it must also be expected that the harm will be of a more significant nature than that required under section 21(1)(a).

Other than the specific references to industrial relations and the management of staff, section 21(1)(b) does not indicate what other management functions are embraced by the term "functions relating to management". Implicit in the NWHB's arguments on this point is the view that its functions relating to management include investigating complaints against it, members of its staff and parties under contract to it. I accept that such investigations are a function relating to management.

In invoking this exemption, the NWHB claims that release would 'severely hamper' its ability to conduct future investigations involving staff or persons under contract. It says that this would 'prejudice the effective management' of the NWHB. Although not expressed in the precise language of section 21(1)(b), its argument is clear enough. The NWHB has to conduct investigations of this kind from time to time. In some cases the informal procedures adopted by the investigator will prove to be quickest, least costly and generally most satisfactory way of resolving the matters at issue. I make no comment on whether the procedures adopted by the investigator in this case were the most appropriate ones in all the circumstances. That is not a matter for me as Information Commissioner, but for the NWHB. I am satisfied that if such procedures are not available to it, then it may have to resort to more formal procedures which, while they might achieve the desired outcome, will be slower and more costly. Having regard to the number of investigations carried out by the NWHB, I am satisfied that such an outcome can reasonably be expected to have a significant adverse effect on the performance of the NWHB's function of carrying out these investigations.

The Public Interest

Section 21(2) provides that the exemptions set out in section 21(1), and which I have dealt with above, shall not apply in a case in which, in the opinion of the head of the public body, the public interest would, on balance, be better served by granting than by refusing to grant the request.

There is a clear public interest in a health board being able to investigate effectively complaints and allegations against its staff and contractors. It seems to me that there are situations where the best method of dealing with such complaints or allegations will be for a public body to conduct its own internal, informal inquiry, with appropriate assurances of confidentiality to the parties concerned. The choice of the most suitable procedures in individual cases rests with the public body. Generally speaking, there is no onus on the public body to justify its choice of procedures in individual cases to me as Information Commissioner when claiming the exemption in section 21(1)(a), although I do not rule out the possibility that the use of a seriously defective procedure might bring about a situation in which release of a record might be required in the public interest.

I refer to appropriate assurances of confidentiality, because no one can expect an unqualified assurance of confidentiality in investigations of this kind in relation to disclosures of wrongdoing. Assurances are not warranted when the effect of granting them would be to conceal wrongdoing by an individual or a public body.

Set against this public interest in conducting investigations is Mr ABL's claim to a 'right to reply'. It seems to me that Mr ABL's claim ignores the fact that it is not his actions which are under investigation, but those of the doctor and pharmacist concerned. Mr ABL was afforded an opportunity to put his evidence before the investigator, which he accepted. What he seeks now is not a right of reply, but a right to re-open the inquiry by challenging the versions of events given by the doctor and pharmacist. I do not accept that the public interest is on balance better served by doing this.

Mr ABL also says that "where wrong doing is evident, the general public have a right to sight of such". I agree that, as a general proposition, the public interest might be better served by releasing material if this led to proper scrutiny of wrongdoing. However, I am not satisfied that this aspect of the public interest would be better served in this particular case by disclosing the disputed records. The investigator examined the matter. He has made certain findings and put forward certain conclusions and these have been made available to the NWHB and to Mr ABL. I should point out that the investigator's findings and conclusions are in no way dismissive of Mr ABL's complaints. On the contrary, certain of the matters of which he complained are upheld in whole or in part. I am satisfied that the public interest is not, on balance, better served by releasing, as a matter of course, confidential statements gathered in the course of an enquiry. I do not rule out the possibility that the public interest might sometimes require this to be done. However, I am not satisfied that the public interest would be better served by such release in the present case.

Section 26

Section 26(1)(a) of the Act provides exemptions for certain information given to a public body in confidence. Section 26(2) provides that these exemptions are not to apply to a record which is prepared by a head, a director or a member of the staff of the public body or by 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. The one exception to this rule is where the disclosure of the information concerned would constitute a breach of a duty of confidence owed to a person other than a public body or head or director, or member of staff of a public body or a person who is providing or provided a service for a public body under a contract for services.

In this case, the record was prepared by the investigator. This was done in the course of the performance of his duties under a contract for services, being a contract to investigate the complaints and allegations made by Mr ABL. Accordingly, the provisions of section 26(2) mean that the exemptions in section 26(1) cannot apply unless disclosure would constitute a breach of a duty of confidence owed to a person other than a person who is providing or provided a service for a public body under a contract for services.

Any duty of confidence which might be owed in this case in relation to the statements at issue could only be owed to the doctor and pharmacist concerned. The NWHB has furnished me with a copy of the standard form of agreements which it has with medical practitioners and pharmacists and I am satisfied that these constitute contracts for services. The NWHB has raised some points in relation to whether, in dealing with Mr ABL, the two individuals concerned were operating under these contracts. I have considerable doubts about the arguments made by the NWHB on this point. Indeed, its own actions in investigating the complaints might tend to suggest that it accepted that services were being provided to Mr ABL under these contracts. However, it seems to me that the precise basis on which services were provided to Mr ABL is irrelevant. The NWHB accepts that the doctor and pharmacist are engaged by it under contracts for services. In the circumstances, even if I were to find that disclosure in this case would constitute a breach of a duty of confidence owed to either or both these parties, it is clear that this is not sufficient to enable section 26(1) to apply. It follows that I must find that the exemptions in section 26(1) do not apply.

Decision

Having carried out my review under section 34 of the Act, I have decided to affirm the decision of the NWHB to refuse access to the accounts of the interviews with the doctor and pharmacist concerned, contained in the investigator's report.

Information Commissioner

03 December 1999