Case number: OIC-53280-Q9F3B4 (190016)
9 August 2019
On 31 August 2018, the applicant sought access to records containing specific details of the activity of Tier 1 and Tier 2 providers on the framework. He later clarified that he sought access to the actual agency usage from September 2017 to date, i.e. the number of hours provided in each location, by profession (health care assistants, nurses and doctors), by the single Tier 1 agency and the combined hours filled by the Tier 2 agencies.
The HSE's decision on 9 October 2018 identified 6 relevant records, four of which were already in the public domain. It granted access to the remaining two records in part, relying on sections 35 and 36 of the FOI Act in support of its decision. The applicant requested an internal review of the HSE's decision. The HSE upheld its original decision on 23 November 2018, on the same basis.
On 8 January 2019, the applicant made an application for review to this Office. During the course of this review, the HSE informed this Office that there was “no specific record which included the information requested”, and said that the information concerned would have to be “extracted from the overall combined reports” provided by each agency. It also stated that a column stating whether the hours were provided by a Tier 1 or Tier 2 provider did “not form part of the reports”. This Office's Investigator requested further information from the HSE in relation to the records held and subsequently informed the applicant of her view that the HSE was justified in refusing access to the total hours by Tier 1/2 agencies on the basis of sections 15(1)(a) and 17(4) of the FOI Act. The applicant indicated that he did not agree with her view.
In conducting this 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, as well as the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the HSE was justified in its decision to refuse to grant access to withheld information relating to the applicant’s request on the basis of the FOI Act.
I note that, in his correspondence with this Office, the applicant referred to obligations on the HSE to monitor the performance of agencies on the framework. However, it is important to note, as a preliminary matter, that this Office has no remit to adjudicate on how FOI bodies perform their functions generally.
The HSE refused to grant access to certain information in the records at issue on the basis of sections 35 and 36 of the FOI Act. However, as set out above, an issue has arisen as to whether the HSE actually holds records containing all of the information sought by the applicant. Accordingly, I will consider the applicability of section 15(1)(a) to the information at issue in the first instance.
Sections 15(1)(a) and 17(4)
It is important to note that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought.
The framework currently has nine recruitment agencies on it. As I understand it, agencies tendered to provide various categories of medical staff including doctors, nurses and healthcare assistants by lot/location. Contracts were awarded on a Tier 1 or Tier 2 basis by profession for each lot. Each profession in a lot has one Tier 1 supplier and a number of Tier 2 suppliers. As I understand it, the HSE goes to the relevant Tier 1 agency when it needs staff for a particular lot, and if they cannot provide the number/grade of staff needed, the HSE then goes to the Tier 2 agencies on the framework.
In essence, the HSE stated that it routinely amalgamates monthly reports received from the agencies on the framework. However, it said that it would need to add an additional column to the amalgamated report to identify whether the hours were provided by a Tier 1 or Tier 2 agency. To clarify, different agencies are different tiers for different lots/professions, so this could not be done by simply replacing the agency name with Tier 1 or 2. Furthermore, an agency could be a Tier 1 provider for one lot and profession, but a Tier 2 provider for another lot, or for other professions in the same lot. For example, Agency X could be contracted to provide doctors on a Tier 1 basis for lot xyz and nurses on a Tier 2 basis for the same lot.
The HSE said that in order to identify the tier of each entry in the amalgamated spreadsheet, it would need to filter the information by relevant agency name, Hospital name, and profession/grade and then manually match this to the relevant list of Tier 1/2 agencies for each category.
I note that this Office’s Investigator contacted the applicant and provided him with details of the HSE’s submissions above. She also informed him of her view that a record containing the information as sought by him did not exist, insofar as the HSE stated that it does not collate the information sought in the way that he is seeking. She also stated that the FOI Act did not oblige the HSE to create such a record. The applicant indicated that he did not agree with her view, and did not accept that the information sought does not exist or cannot be easily calculated. In support of his view, he said that the HSE was required to monitor the percentage fill rates of the Tier 1 suppliers and that these figures should be readily available. He also said that the monthly usage reports provided to the HSE by each agency contained “enough information for the HSE to easily calculate” the hours by profession and lot for both tiers. He also provided a formula for the HSE to use to “extract the information from the spreadsheets submitted by each agency as to whether the hours provided to each client location are from a Tier 1 or Tier 2 agency”.
An FOI body is not required to create a record in order to grant an FOI request, except where section 17(4) is relevant. Section 17(4)(a) of the FOI Act provides that where an FOI request relates to data contained in more than one record held on an electronic device by the FOI body concerned, “the FOI body shall take reasonable steps to search for and extract the records to which the request relates, being steps that involve the use of any facility for electronic search or extraction that existed on the date of the request and was used by the FOI body in the ordinary course”.
In this case, it is not in contention that the HSE holds records that contain much of the information sought, or that the information sought could be extrapolated from the information held, following additional work. The applicant has contended, in essence, that the information he seeks (the fill rates of both tiers) can easily be extracted or calculated from the records available to the HSE. However, as this Office has found in other similar cases, where information on a database requires further validation, analysis, or processing in order to create the specific information that has been requested, I would not consider this to be a 'reasonable step' of the sort set out in section 17(4).
My understanding is that the HSE does not use the formulae provided by the applicant in the normal course and does not construct its amalgamated agency report in such a way as to calculate the fill rates of the different tiers of agencies. Whether or not it should is not a matter for this Office to address. I am satisfied that using the formulae or filtering and manually comparing the spreadsheets to a list of agencies is beyond the use of reasonable steps as set out in section 17(4) and would in fact require the creation of a new record.
In the alternative, the applicant stated that he would accept copies of all spreadsheets submitted by agencies so that he could carry out the calculations himself. He also stated that he would accept the HSE removing certain columns including the agency name from the spreadsheet, but asked that it substitute the agency name with the details of the agency’s position on each lot and profession. In my view, this would go beyond redaction of the record held and involve the same effort which I consider to go beyond the taking of reasonable steps as required by section 17(4)(a) of the FOI Act. Accordingly, I find that the HSE was justified in refusing to grant access to a record containing all of the information sought by the applicant on the basis that the record does not exist, and that it was not required to create one.
The HSE released a spreadsheet to the applicant containing the Agency name, staff grade, total hours per relevant period and total spend by period. Its view was that the inclusion of a breakdown by tier, lot and profession, if reviewed in conjunction with the National Agency framework User Guide which is widely available and has been provided directly to the applicant, would allow the calculation of the value of assignments serviced by the Tier 1 agencies and that this would breach the HSE’s contractual obligations.
In essence, it considered that its decision was consistent with my decision in Case Numbers 180162, 180163 and 180253, which concerned similar requests for information. I accepted in that joint decision that details of the fill reports of the various agencies were commercially sensitive and found that the public interest did not warrant their release in full. I also found that the release of the relevant Agency name, staff grade, total hours per relevant period and total spend by period met the public interest in openness and transparency in the use of public funds.
I understand from the HSE and the applicant’s submission that the relevant agency names and whether they are acting as a Tier 1 or Tier 2 agency in respect of each location and profession is known to the applicant. Accordingly, even if the HSE had the ability to easily create a report with the agencies renamed as requested, it is clear that this would not anonymise the information.
The applicant is of the view that what he is seeking is non-commercial information relating to the HSE's use of recruitment agencies and the performance of the Framework Tiers across the hospital network. However, as set out in my previous decision concerning the reports provided by the agencies, I consider that the release of the records at issue would reveal the individual agencies’ dealings with the HSE in considerable detail. In particular, the fill rate details sought in terms of the Tier 1 agencies by lot and profession would reveal any potential weaknesses or lapses on the part of the agencies concerned. It is important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.
While there is a public interest in transparency and accountability in relation to the use of public funds, it seems to me that if the records revealed a pattern or repeated gap between the HSE’s needs and an agency’s ability to supply suitable staff, this would allow a competitor to position itself so as to take advantage of this. In the circumstances of this case, which is closely related to cases 180162, 180163 and 180253, I accept that disclosure of the details sought by the applicant could prejudice the competitive position of the agencies concerned. Accordingly, I find that section 36(1)(b) applies to the records at issue.
Section 36(3) of the FOI Act requires me to consider, whether on balance, the public interest would be better served by granting rather than refusing the request.
Section 36(1) itself reflects the public interest in protecting commercially sensitive information. I recognise that there is a legitimate public interest in entities being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result.
On the other hand, the FOI Act recognises, both in its long title and in its individual provisions that there is a significant public interest in government being open and accountable. Section 11(3) of the FOI Act provides that public bodies shall, in performing any function under the FOI Act, have regard to a number of matters, including the need to achieve greater openness in their activities and to promote adherence by them to the principles of transparency in government and public affairs.
The purpose of the public interest test is to strike a balance between competing interests insofar as they are relevant. The Commissioner takes the view that the FOI Act was designed to increase openness and accountability in the way in which public bodies conduct their operations; generally speaking, it was not designed as a means to open up the operations of private enterprises to scrutiny.
The HSE stated that release of these records could have a detrimental impact on the future provision of reports by the agencies. However, as noted in my previous decision, clause 7 of the sample service level agreement between the parties sets out the reporting obligations of the agencies on the framework. Accordingly, I do not accept that the agencies on the framework would be in a position to stop providing these reports.
The applicant has made a number of arguments in favour of the release of additional information relating to the fill rates of the agencies on the framework, and the issue of how this is being monitored. He expressed concern that the HSE should achieve value for money in the use of the agencies and referred to the public interest in how the awarded contracts and resulting service level agreements are monitored. He also argued that patient safety was a relevant concern and criticised the management of the agency framework.
I have found above that the records concerned contain commercially sensitive operational day-to-day information relating to the agencies and their staff. However, the Commissioner takes the view that, generally the expectation of a diminution of privacy rights, at least in relation to the disclosure of details of commercial transactions with public bodies, is a necessary consequence of doing business with public bodies. In other words, bodies doing business with public bodies should expect a high degree of openness and transparency.
I consider that in this case the public interest in private enterprises being able to conduct business with the State without being commercially disadvantaged outweighs the public interest in seeing all of the agencies' dealings with the HSE. I accept that there is a strong public interest in how such contracts are monitored once they have been awarded. However, while release of the records in full would address the public interest in openness, transparency and accountability of the HSE in its administration of the framework, I am of the view that this public interest has been met to some extent by the release of the type of information already provided to the applicant by the HSE in response to his request.
I find that, on balance, the public interest does not favour the release of the rest of the information sought. Accordingly, I find that m the HSE’s decision to refuse to grant access to additional information concerning the hours by profession by lot provided by each Agency is justified on the basis of section 36(1)(b) of the Act.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the HSE’s decision to refuse to grant access to additional information on the basis that (a)a record containing the information as sought does not exist (section 15(1)(a) , and (b) that the remainder of the information concerned is exempt under section 36(1)(b) and that the public interest on balance does not weigh in favour of its release.
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.