Case number: OIC-132011-M3Z9H3, OIC-132029-L5W3Y9

Whether CORU was justified in granting access to records relating to a programme approval process carried out

 

12 May 2023

 

Background

This composite decision arises from decisions taken by CORU to grant access to certain records pursuant to FOI requests to which section 38 of the FOI Act applies. Section 38 applies where, at some stage in the decision making process, the FOI body has formed the view that the records at issue qualify for exemption under one or more of the relevant exemptions in the FOI Act (i.e. sections 35, 36, 37 – relating to information that is confidential, commercially sensitive, or third party personal information, respectively) but that the records should be released in the public interest. Where section 38 applies, the FOI body is required to notify an affected third party before making a final decision on whether or not the exemptions, otherwise found 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 FOI body, may apply directly to this Office for a review of that decision. This case concerns an application for review made by an affected third party (the applicant).

CORU received two requests for certain records relating to an application for accreditation submitted by the applicant, a private college, in respect of a number of specified education courses. The records at issue in the case of the first request comprise (i) a letter from CORU to the applicant with observations on a submission the applicant had made as part of the Programme Approval process, and (ii) a mid-process meeting note. The record at issue in the case of the second request is that same letter from CORU to the applicant.

CORU notified the applicant of the requests under section 38 of the FOI Act, wherein it outlined its preliminary view that the public interest would, on balance, be better served by granting access to the two records. The applicant made submissions to CORU wherein it argued that the records in question should not be released, pursuant to section 36(1)(b) of the Act. CORU informed the applicant of its decision to grant access to the two records pursuant to section 36(3) of the FOI Act. On 2 November 2022, the applicant sought a review by this Office of CORU’s decisions in each case.     

In light of the overlapping nature of the requests and the records at issue, I have decided to issue a composite decision in respect of both cases. I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the correspondence between the applicant and CORU as set out above and to the submissions made by the applicant, CORU, and the original requesters during the review. I have also had regard to the content of the records at issue.

Scope of Review

This review is concerned solely with whether CORU was justified in its decision to grant access, under section 36(3) of the Act, to two records, namely a letter from CORU to the applicant with observations on a submission made, and a mid-process meeting note.

Preliminary Matters                                                                        

Before I address the substantive issues arising, I wish to make a number of preliminary comments. First, it is important to note that under section 22(12)(a) of the FOI Act, a decision to grant a request to which section 38 applies shall be presumed to have been justified unless the person to whom the information relates shows to the satisfaction of the Commissioner that the decision was not justified. This means that the onus is on the applicant to satisfy this Office that CORU’s decisions to grant access to the records at issue was not justified.

Secondly, although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records at issue is limited.

Finally, it is important to note that a review by this Office is considered to be “de novo”, which means, in this case, that it is based on the circumstances and the law as they pertain at the time of the decision. Accordingly, in light of the “de novo” nature of our reviews, I consider it appropriate to consider the applicability of additional mandatory exemptions, notwithstanding the fact that the provisions were not relied upon as a ground for refusing access to the records in the FOI body’s decisions on the request.

Analysis and Findings

The records in question and the role of CORU

As noted above, I am limited in the description of the records that I can provide. However, I believe it would be useful to provide some high-level detail in respect of the records and the functions of CORU.

CORU is a multi-profession health regulator. Its role, according to its website, it to protect the public by promoting high standards of professional conduct, education, training and competence through the statutory registration of health and social care professionals. It was set up under the Health and Social Care Professionals Act 2005, as amended (the 2005 Act). It is made up of the Health and Social Care Professionals Council and the Registration Boards, one for each profession named in the relevant legislation.

In its submissions to this Office, CORU says that section 48 of the 2005 Act sets out the powers of a Registration Board to approve, or not, an education and training programme as being suitable for the education and training of candidates for registration on its register.

In March 2015, the Minister for Health confirmed the establishment of, and appointment of members to, the Social Care Workers Registration Board to regulate the profession of social care workers. In 2017, the Social Care Workers Registration Board set its education and training standards.

According to guidance on the CORU website, its programme approval process allows a Registration Board to determine if it is satisfied that a programme is suitable for the education and training of candidates for registration on its register. The records at issue in this case relate to applications for programme approval submitted to the Social Care Workers Registration Board by the applicant.

CORU provided this Office with an overview of its programme approval process which I have summarised below:

  1. Application made by higher education institution.
  2. CORU arranges a pre-visit and provides information on the Registration Board requirements.
  3. Higher education institution submits documentary evidence.
  4. Review team is appointed by the Registration Board. The team evaluates the documentary evidence and prepares observations on the submission, highlighting criteria or standards that it believes are not met.
  5. Detailed observations of the review team are provided to the higher education institution.
  6. Higher education institution is provided with an opportunity to submit additional documentary evidence.
  7. Review team evaluates any further information.
  8. Review team meets to prepare for the visit.
  9. Review team conducts a visit to triangulate and verify evidence.
  10. Review team prepares its report to the Registration Board outlining its opinion as to whether evidence is sufficient to demonstrate meeting the requirements.
  11. Registration Board considers all evidence. It approves its report to issue to the higher education institution.
  12. CORU issues the report.
  13. Higher education institution may respond to the Registration Board and provide additional documentary evidence in response to the report.
  14. Review team reconvenes if necessary.
  15. Registration Board considers the evidence and determines whether it is sufficient to demonstrate that the programme delivers graduates who have the required standards to practice.
  16. Registration Board makes a statutory decision on approval.

In its submissions, CORU said that the Social Care Workers Registration Board has not yet made an Approved Qualifications Bye-Law. However, it said that a number of social care worker programmes have successfully completed the programme approval process. The two records at issue relate to the above process. One is a copy of correspondence which details observations on a submission for programme approval made by the applicant while the second is a mid-process meeting note.

Section 36(1)(b) – commercially sensitive information

Section 36(1)(b) of the FOI Act provides that an FOI body shall refuse to grant a request if the disclosure of the record sought 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 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 36(1)(b) is that disclosure “could reasonably be expected to result in material loss or gain”. This Office 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, this Office takes the view that, in invoking "prejudice", the damage that could occur must be specified with a reasonable degree of clarity.

The applicant’s position is that the records contain commercially sensitive information, the disclosure of which could reasonably be expected to result in material financial loss and could prejudice its competitive position. It said the records contain detailed information about its submission and that disclosure of the materials would be very harmful to its brand and “its reputation among students, prospective students and the public at large”. It said the materials do not provide a “complete picture” because the applicant did not provide responses to certain observations as it “withdrew its application in order to reapply”.

The applicant also argued that disclosure of the material would “provide significant assistance to other educational providers who wish to make applications to CORU”. It argued that release of the information would give such providers an “unfair insight into how CORU assesses applications” which could prejudice the competitive position of the applicant.

On foot of queries from this Office, the applicant made further specific submissions in respect of the mid-process meeting note. It said the note contains commercially sensitive information, the disclosure of which could result in material loss and prejudice its competitive position. It argued that disclosure would be harmful to its brand and reputation. It said the note does not provide a “complete picture” and that it had not responded to the observations outlined. 

In its submissions to this Office, CORU said it “recognises that the threshold to be met in 36(1)(b) is low, and felt it was met in this case”.

Having consider the above submissions and the content of the records at issue, I accept that the proposed release of the CORU letter could prejudice the applicant’s competitive position. It contains detailed and quite specific observations on the applicant’s submissions and I accept the applicant’s argument that disclosure could cause reputational harm and thereby prejudice its competitive position. I find that section 36(1)(b) applies to the letter.

However, I am not satisfied that the entirety of the mid-process meeting note is exempt under section 36(1)(b). Much of the information therein constitutes administrative information relating to application processing timelines and procedural matters. In its submissions on the record, the applicant said it was agreeable to the partial release of the record. It provided a copy of the record with proposed redactions highlighted. Having carefully considered the content of the record, I am satisfied that section 36(1)(b) applies to the following sections:

  • The third paragraph, page 2
  • The second last paragraph, page 3

However, I am not satisfied that the applicant has satisfactorily shown how the release of any of the remaining information, including the additional information it has sought to be redacted, might give rise to any of harms identified in section 36(1)(b). It is clear from information that is already in the public domain on the matter that CORU considered the application for accreditation to be lacking in certain respects. The disclosure of the reminder of the record would not involve the disclosure of a greater level of detail than what is already in the public domain. I find that section 36(1)(b) does not apply to the remainder of the record.

As I have found that section 36(1)(b) applies to the CORU letter in full and to a small amount of information in the mid-process meeting note, I must also consider whether section 36(2) or section 36(3) serve to disapply section 36(1).

Section 36(2)

Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified in section 36(2) arises in this case.

Section 36(3)

Section 36(3) provides that section 36(1) does not apply to a case in which the FOI body considers that the public interest would, on balance, be better served by granting than refusing to grant the request. In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. That section recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”. Indeed, the Court held that section 36(1) “recognises that there is a public interest in the protection of commercial sensitivity and this may be normally served by the operation of the exemption itself, which provides for the refusal of an FOI request”.

Submissions

The applicant argued that the public interest would not, on balance, be better served by granting rather than refusing the request. It said that in correspondence dated 19 September 2022, CORU requested that the applicant submit how, in its view, disclosure of the materials would be harmful to the public interest. It argued that this is not the test that is required under the FOI Act. It noted that CORU had considered the general public interest in disclosure and transparency in public undertaking and argued that it had not had any regard to whether the public interest would be better served by either release or refusal of the records.

The applicant further argued that it is necessary to protect the regulatory process from external scrutiny. It said this is particularly the case where “an application process was not completed, and no official finding was made by CORU”. It said the records do not contain the applicant’s response to the observations therein. It said it believes it could have provided evidence to allay any concerns, had it continued with the programme approval process. It further said that some of the observations made were “misinterpretations by CORU of the materials submitted” by the applicant.

The applicant also argued that disclosure of the records could serve to hinder future relations between applicants and CORU. It argued that release is not conducive to openness and transparency between applicants and CORU. It said that in the decision-making records, CORU referred to a number of “key issues” raised by the applicant but said that further matters set out in its submissions to CORU were not addressed. The applicant said CORU made a suggestion that it is open to the applicant to make a statement in respect of the matter, referring to comments made by this Office in previous decisions. The applicant said that such comments relate to the records of public bodies and are not relevant to the applicant, a private third-party. It said CORU had not justified its decision and that it had not provided any sufficiently specific, cogent and fact based reasons to tip the balance in favour of disclosure.

In its submissions to this Office, CORU said that the public “must have confidence that health and social care professionals are appropriately trained to deliver safe and appropriate care”. It said the public must also have confidence that “CORU’s education quality assurance processes are fair, reasonable and robust”. It said that the public, in particular students impacted by the decision of the applicant to withdraw from the programme approval process, should be provided with information contained in the records. It said the public must have confidence in CORU and its regulatory remit to protect the public, “rather than being perceived to serve private interests”.

CORU added that it is “critical to the protection of the public that CORU’s pre-registration education and training requirements are met”. It said it is “committed to ensuring that processes are fair and transparent for all” including those impacted by decisions to withdraw from the programme approval process. It said that while decisions to withdraw are the responsibility of the relevant institution, “the public must have confidence that CORU’s education quality assurance processes are fair, reasonable and robust to ensure continuing trust and confidence in the delivery of safe health and social care by the professions” it regulates. It argued that the public interest is better served by the release of the records.

One of the original requesters also made submissions to this Office during the course of the review. He argued that the records requested should be released in their entirety. He argued that the matters at stake are in the public interest, even if they “possibly reflect badly” on the applicant. He argued that certain members of the public impacted by the matter the subject of the records “deserve answers to their questions”.

Analysis

Section 36(1) of the FOI Act reflects the public interest in the protection of commercially sensitive information. This Office recognises that there is a public interest in protecting the commercially sensitive information of third parties such as the applicant in this case. The Commissioner 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, in general terms, was not designed as a means by which the operations of private enterprises were to be opened up to scrutiny.

I have carefully considered the submissions made by the parties and the content of the records in question. The question at issue is whether the public interest would, on balance, be better served by granting than by refusing access to the information in question. As noted above, the Supreme Court has held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest.

The arguments advanced by CORU in respect of the public interest relate to its role and regulatory remit. I note that a significant amount of documentation and guidance is available on the CORU website, including information in respect of its approval and monitoring processes and the criteria and standards of proficiency. A list of qualifications which have been approved by relevant Registration Boards is also available. Guidelines are available in respect of the accuracy of programme information in circumstances where programmes are not approved, are undergoing the approval process or are approved. Information and updates are available in respect of the registration of social care workers. I note that, where relevant, other records relating to the programme approval process have been released to the requester.

In communications with this Office, CORU said that there was no legal requirement on educational providers to be approved. The decision to apply, and indeed the decision to withdraw an application, sits with the education institution. CORU has no regulatory or monitoring role until such time as a programme is approved. In the current case, the applicant has withdrawn its application for programme approval. As noted by the applicant, the programme approval process did not conclude; the applicant withdrew prior to any formal decision of the Registration Board issuing.

While CORU is a regulator and while the records relate to its remit and functions, I note that the applicant is not currently a regulated body in the context of the courses in question. I note that records disclosed and information already in the public domain discloses the nature of CORU’s programme approval process. It seems to me that the information available enables an assessment of CORU’s performance of its functions and of whether its programme approval process is fit for purpose. The public interest is also served by the fact that information in respect of programmes approved is available on the CORU website.

Having regard to the findings of the Supreme Court in the judgment cited above and in light of the above analysis, I am not satisfied that the public interest would, on balance, be better served by granting access to the information to which I have found section 36(1)(b) to apply. 

I accept CORU’s arguments that the public must have confidence that its education quality assurance processes are fair, reasonable and robust and that it is critical to the protection of the public that CORU’s pre-registration education and training requirements are met. However, when considering where the balance of the public interest lies, it is significant, in my view, that the applicant withdrew its application for programme approval, in light of the shortcomings identified by CORU. Given my finding that the release of the information at issue could prejudice the competitive position of the applicant, I must identify a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure. I am aware of no such factors that would lead me to conclude that the public interest would be better served by release of the information. I find, therefore, that section 36(3) does not apply.

Section 37(1) – personal information

Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act also details 14 specific categories of information that is personal information without prejudice to the generality of the forgoing definition including at (iii) information relating to the employment or employment history of the individual.

None of the parties to the review have made submissions in respect of the application of section 37(1) to the records. Nevertheless, the exemption is mandatory and the FOI Act provides for a significant level of protection for the privacy rights of third parties. I am satisfied that some of the information in the mid-process meeting note to which I have found 36(1)(b) not to apply comprises personal information relating to individual employees of the applicant. I find that section 37(1) applies to the names of such employees. I am satisfied that none of the exceptions set out in section 37(2) or 37(5) apply.

Summary of Findings

I find that section 36(1)(b) applies to the entirety of the letter from CORU. I find that section 36(1)(b) applies to the following information in the record comprising the mid-process meeting note.

  • The third paragraph, page 2
  • The second last paragraph, page 3

I also find that section 37(1) applies to the names of employees of the applicant contained in the mid-process meeting note. I direct the release of the remaining information in that record.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of CORU. I find that it was not justified in its decision to grant access to its letter to the applicant with observations on a submission made, and that it was not justified in its decision to release certain information contained in the mid-process meeting note, as identified above. I direct the release of the mid-process meeting note with the redaction of the information I have identified above as being exempt from release under sections 36(1)(b) and 37(1).

Right of Appeal

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 applicant 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.

 

Stephen Rafferty
Senior Investigator