Case number: OIC-134022-V2T1K8

Whether the Hospital was justified in refusing access to records related to its resumption of screening for cervical cancer

 

24 July 2023

 

Background

In a request dated 30 September 2022, the applicant sought access to the following records from the Hospital:

  1. Copies of any correspondence between the hospital and the Department of Health with regard to the resumption of screening for cervical cancer
  2. Copies of any progress reports, memos, reports, or submissions associated with the resumption of screening for cervical cancer at the Hospital.

The Hospital failed to issue a decision on the applicant’s request within the timeframe set out in the FOI Act. As such, it was deemed to have refused the request. On 30 November 2022, the applicant sought an internal review of the Hospital’s deemed refusal of his request. The Hospital again failed to issue its internal review decision within the statutory timeframe. The Hospital subsequently set out its effective position in relation to the request in correspondence dated 13 January 2023, wherein it refused the request in its entirety. In relation to part 1 of the request, it cited section 15(1)(a) of the FOI Act, essentially arguing that the records sought by the applicant in this part of his request did not exist. The Hospital relied on sections 29(1), 30(1)(b), 36(1)(c) and 37(1) of the FOI Act as grounds to withhold the 10 records that it identified as falling with the scope of the second part of the applicant’s request.  On 16 January 2023, the applicant applied to this Office for a review of the Hospital’s decision.

In the course of carrying out this review, I formed the view that the release of the records at issue had the potential to affect the interests of the HSE’s National Screening Service (NSS). In addition, I formed the view that the interests of a number of other third parties may also be potentially affected by the release of the records. I therefore contacted the NSS, and the other relevant third parties, to put them on notice of the review and to invite them to make any submissions that they wished in support of the Hospital’s decision to refuse access to the records. The NSS and a number of the relevant third parties subsequently provided submissions, and I have considered these in full. A number of other third parties that I contacted either indicated that they did not wish to make submissions, or did not respond to my correspondence. In the course of the third party submissions, as well as supporting the exemptions under the FOI Act cited by the Hospital, certain third parties cited exemptions additional to those relied on by the Hospital itself as a basis for their view that the records that potentially affected their interests should be withheld, specifically sections 30(1)(c), 35(1)(a) and section 36(1)(b). As the applicant had not had an opportunity to consider the applicability of these provisions of the FOI Act in the context of this review, I wrote to him to put him on notice of same and to invite him to make any further submissions that he wished. The applicant indicated that he did not wish to make any further submissions.

Furthermore, in the course of conducting this review I formed the view that section 37(1) may also apply to certain information in the records besides those in respect of which the Hospital specifically cited that provision of the FOI Act. I examine this issue in more detail below.

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 exchanged by the parties, the comments of the applicant in his application to this Office for a review, and the submissions made by the Hospital in support of its decision. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

In correspondence with the applicant, he agreed on the basis of information provided to this Office by the Hospital in its submissions to exclude the records sought in part 1 of his request, in respect of which the Hospital had cited section 15(1)(a) of the FOI Act, from the scope of this review. Accordingly, this review will focus solely on part 2 of the applicant’s request, and in particular whether the withheld records are exempt from release under sections 29(1), 30(1)(b), 30(1)(c), 35(1)(a), 36(1)(b), 36(1)(c) and 37(1) of the FOI Act.

Preliminary Matters

As outlined above, the Hospital failed to issue decisions within the relevant timeframes set out in the FOI Act at both stages of the applicant’s request. It is incumbent upon me to remind the Hospital of its obligation to issue decisions on FOI requests within the timelines set down in the FOI Act. The FOI Act is clear and unequivocal in this regard and the Hospital cannot but be aware of the relevant timeframes and its obligation to meet the statutory deadlines, and should take steps to ensure that its decisions issue within those deadlines.

In addition, I should note that section 13(4) requires that, subject to the FOI Act, any reasons a requester gives for making a request shall be disregarded. This means that an applicant's motivation cannot be considered, except insofar as it might be relevant to the consideration of public interest provisions.

Analysis and Findings

Records at issue

The records at issue in this case are as follows:

  • record 1 (pages 1-2): letter dated 22 March 2022 from the NSS to the Hospital
  • record 2 (page 3): letter dated 20 May 2022 from the Hospital to the NSS
  • record 3 (pages 4-5): letter dated 24 May 2022 from the NSS to the Hospital
  • record 4 (pages 6-7: letter dated 10 June 2022 from the NSS to the Hospital
  • record 5 (pages 8-9): letter dated 7 July 2022 from the NSS to the Hospital
  • record 6 (page 10): email dated 19 July 2022 from the Office of the Chief Clinical Officer to the Hospital
  • record 7 (pages 11-12): letter dated 20 July 2022 from the Hospital to the NSS
  • record 8 (pages 13-14): letter dated 21 July 2022 from the NSS to the Hospital
  • record 9 (pages 15-21): letter dated 3 August 2022 from the Hospital to the NSS
  • record 10 (page 22): email dated 9 August 2022 from the NSS to the Hospital.

 

Section 36(1)

I consider it appropriate to examine the applicability of section 36(1) of the FOI Act first. The Hospital sought to rely on section 36(1)(c) as a basis to withhold records 1, 3, and 9. In addition, as outlined above, certain potentially affected third parties also argued that section 36(1)(b) was applicable. In particular, the NSS argued that both sections 36(1)(b) and 36(1)(c) operated to exempt from release all of the records at issue, with the exception of record 10.


Section 36(1)(b)

Section 36(1)(b) provides a mandatory exemption to the release of a record where it contains financial, commercial, scientific or technical or other information whose disclosure 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 that person in the conduct of his or her profession or business or otherwise in his or her occupation.  It should be noted that 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 subsection (1)(b) is whether disclosure of the information “could reasonably be expected to result in material financial loss or gain”. The test in this regard is not a question of probabilities or possibilities, but rather whether the FOI body’s expectation is reasonable. Thus, a body citing section 36(1)(b) should demonstrate the nature of the harm envisaged and a basis for a claim that such harm could reasonably be expected to result from disclosure of the particular information in the record at issue.

The harm test in the second part of subsection (1)(b) is whether disclosure of the information “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. This is a considerably lower standard of proof than that contained in the first part of section 36(1)(b). This being said, in invoking the phrase "prejudice", the damage which could occur as a result of disclosure of the information must be specified with a reasonable degree of clarity.

In its submissions, the NSS argued that the release of records 1 to 9 could prejudice the conduct of contractual negotiations, resulting in it suffering a material financial loss. It stated that, in order to deliver CervicalCheck (Ireland’s cervical screening programme), it contracted laboratory services. In addition to the contract with the Hospital, the NSS stated that it had a contract with another named laboratory provider. The NSS outlined that this contract is due to conclude, so an open procurement process is ongoing (and was ongoing at the time of the FOI request in September 2022). The NSS outlined that the records, at pages 1 and 7, made reference to this third party provider, including reference to excess costs that the programme was facing due to the prolonged suspension of cervical screening laboratory services at the Hospital. The NSS also outlined that record 1 noted concerns related to continuity of service in the event that the backup services of the third party provider were to be unavailable to the programme.

The NSS argued that records 1 to 9, taken together, provided a narrative around some of its concerns regarding the capacities of a current laboratory service provider which, if released, could prejudice the ongoing contractual negotiations regarding the procurement of a second laboratory service provider. The NSS argued that the release of the records could give tenderers an advantage by revealing concerns with the capacities of another service provider currently contracted to the programme. The NSS outlined that part of the procurement process included the negotiation of a contract for services following which tenderers may offer their price. It stated that it was reasonable to expect that tenderers could use the information in the records to inflate their prices during the ongoing procurement process.

For section 36(1)(b) to apply, there must be a link between disclosure and the harms alleged. In the High Court case of Westwood Club v The Information Commissioner [2014] IEHC 375, Cross J held that it was 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. As the Supreme Court observed in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (the “ENet case”), it is not sufficient for the FOI body to merely assert that disclosure could prejudice its competitive position; an FOI body must also have a reasonable basis for that position.

I have reviewed the records at issue and the NSS’s submissions and find as follows. In respect of the majority, but not all, of the records that the NSS argued were exempt under section 36(1)(b), I accept that – in circumstances where an ongoing procurement process exists – the arguments made by the NSS in relation to the potential for it to suffer a material financial loss are valid. In particular, I accept its contention that it could reasonably expect the information in records 1 to 5, records 7 and 8, and pages 15 to 19 of record 9 to be utilised by tenderers during the procurement process to inflate their price, with the result that the NSS may suffer a material financial loss. I would also accept that, should any tenderer be able to avail of the information in the records in this manner, the NSS may be prejudiced in the conduct or outcome of contractual negotiations. I consider that the NSS’s expectation of the harms that may follow from the release of the records is therefore reasonable, and that it has tied its concerns to the contents of the records. In those circumstances, I find that both tests in section 36(1)(b) are met and the information in records 1 to 5, records 7 and 8 and pages 15 to 19 of record 9 fall within the scope of that provision of the FOI Act.

However, I do not accept that record 6 or pages 20 and 21 of record 9 fall within the scope of section 36(1)(b). Record 6 is an email from the Office of the HSE’s Chief Clinical Officer to the Hospital. It refers to an attached letter from the NSS (which itself forms part of the records and which I have accepted falls within the scope of section 36(1)(b) of the FOI Act). This email refers to issues with screening services at the Hospital, but does so in extremely general and broad terms, and only briefly. I do not accept that the harms identified by the NSS in its submissions – that a tenderer in the current procurement process may be able to obtain an advantage, to the financial detriment and/or the prejudice of the negotiating position of the NSS – can be reasonably expected to flow from the release of this record.

In relation to pages 20 and 21 of record 9, the contents of these pages comprise two organisation charts – the organisation chart for the Hospital generally at page 20, and the organisation chart for the Cytopathology Department at page 21. I cannot envisage any manner in which the release of these two pages of the record could reasonably be expected to give rise to the harms identified by the NSS. Indeed, I note that a virtually identical organisation chart as that at page 20 is published by the Hospital at page 146 of its annual report for 2021 (available at https://www.coombe.ie/annual-report). It is extremely difficult to accept that a virtually identical document to one that the Hospital itself has made public could be commercially sensitive for the purposes of section 36(1)(b).

In respect of the information in the records that I have found to fall within the scope of section 36(1)(b), the matter does not end there, as subsection (1) of section 36 is subject to section 36(3). This provides that subsection (1) shall not apply if, on balance, the public interest would better served by granting than by refusing access to the records at issue. In its submissions, the NSS addressed the public interest test, outlining its view that it was not in the public interest for a publicly-funded service to face an increased cost to the exchequer owing to the publication of information about operational concerns with the current provider. It noted the well-publicised fact that the current laboratory provider (the Hospital), which had been established to become the principal provider of laboratory services to CervicalCheck, had experienced a further set-back in processing samples for CervicalCheck due to a temporary suspension of its Irish National Accreditation Board (INAB) accreditation.  While the NSS accepted that there was a public interest in the public being assured of the quality of the services being delivered at the laboratory, it argued that it did not consider that the release of the records would create any further benefit to the public seeking such assurances beyond the information that was already in the public domain. On the other hand, it argued that the harms it expected to flow from the release of the records (a likely increase in costs to the NSS, and to the exchequer, in the current procurement process) was not in the public interest. As such, the NSS argued that, on balance, the public interest would not be better served by releasing than by withholding the records

I am inclined to agree with the public interest arguments made by the NSS. I consider that there is a public interest in the public being informed about any issues with CervicalCheck, but I also accept that the information in the records that goes to such concerns is largely already in the public domain, for example in this Irish Times news report:  https://www.irishtimes.com/health/2023/03/30/processing-of-irish-cervicalcheck-samples-halted-after-labs-accreditation-is-suspended/. I therefore also accept that the release of the information in the records would not significantly further this public interest benefit. I further accept that the harms identified by the NSS, should they come to pass as a result of the release of the records, would not be in the public interest. Accordingly, I find that the public interest would be, on balance, better served by refusing than by granting access to the records in question. Therefore, section 36(3) does not serve to disapply section 36(1)(b).

On the basis of the foregoing, I find that records 1 to 5, records 7 and 8, as well as record 9 (apart from pages 20 and 21) are exempt from release under section 36(1)(b). In those circumstances, I am not required to examine the extent to which section 36(1)(c) might apply to these records. Nor am I required to examine to the additional provisions of the FOI Act under which the Hospital, or the relevant third parties, sought to withhold the records.

It remains for me to examine whether record 6, pages 20 and 21 of record 9, and record 10 are exempt under any of the other provisions of the FOI Act cited by the Hospital or the relevant third parties.

Section 36(1)(c)

Section 36(1)(c) of the FOI Act provides that access to a record must be refused where the disclosure of information contained in the record could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information

relates. The standard of proof required to meet this exemption is relatively low in the

sense that the test is not whether prejudice or harm is certain to materialise but

whether it might do so. Having said that, the Commissioner expects that a party

seeking to rely on this exemption would be able to:

 

  • show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure, and
  • explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.

 

Insofar as record 6 and pages 20 and 21 of record 9 are concerned, on the basis of my analysis of section 36(1)(b) above, I do not consider that the information in these records falls within the scope of section 36(1)(c). In short, I cannot envisage a manner in which the release of the information in these pages of the record could prejudice the conduct or outcome of contractual or other negotiations.

Section 29(1)

The Hospital relied on section 29(1) of the FOI Act to withhold record 1 and records 3 to 10. However, in circumstances where I have found all of these records except record 6, pages 20 and 21 of record 9, and record 10 to be exempt under section 36(1)(b) of the FOI Act, I only need examine the applicability of section 29(1) to the information in those latter three records.

Section 29(1) of the FOI Act provides that an FOI body may refuse to grant access to a record if:

  1. the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and
  2. the granting of the request would, in the opinion of the body, be contrary to the public interest.

Without prejudice to the generality of paragraph (b), the FOI body is required, in determining whether to grant or refuse to grant the request, to consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make. Thus, the exemption at section 29(1) has two requirements: the record must contain matter relating to the deliberative process, and its disclosure must be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to the satisfaction of this Office that both requirements have been met.

A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.

On the question of whether the records contained matter relating to the deliberative processes of an FOI body, the Hospital stated in its submissions that the withheld information related to its deliberations and those of the NSS (itself an FOI body). The Hospital did not elaborate on the basis for this view and did not identify the deliberative processes concerned nor any matter in particular records which related to such processes. This notwithstanding, I would accept as a general proposition that a number of the records (including those I have found to be exempt under section 36(1)(b) of the FOI Act) contain material relating to the deliberative processes of both the Hospital and the NSS, specifically the deliberations of both bodies regarding the resumption of cervical cancer screening at the Hospital, following the well-publicised cyber-attack on the HSE in December 2021. I consider that the deliberative processes disclosed by those records also relate to the preparations for the opening of, and the provision of screening services at, the National Cervical Screening Laboratory (NCSL), based in the Hospital, which began processing samples in December 2022.  However, I am not convinced that the specific records at issue – record 6, pages 20 and 21 of record 9, and record 10 – meet this requirement.

In the case of record 6, as outlined above this is an email to the NSS that refers in only broad and general terms to issues with screening services at the Hospital. As outlined above, record 6 originates from the Office of the Chief Clinical Officer which, as an organisation that falls under the aegis of the HSE, is itself an FOI body. It should be noted that, as a potentially affected third party, I contacted he Office of the Chief Clinical Officer to put it on notice of the possible release of record 6 and to invite it to make any submissions that it wished in relation to the matter. It is of relevant that the Office of the Chief Clinical Officer subsequently reverted to indicate that it had no objections to the record being released. Furthermore, in my opinion, there is no information in this record that relates to the deliberative processes of either the Hospital, or the NSS, or the Office of the Chief Clinical Officer. The record reveals nothing of the thinking process of any of these bodies regarding the manner in which issues with the screening service might be addressed, only that they must be addressed. There is no indication of the sources of information taken into account by any of the bodies, or the weight they may have given to various information and facts, or the reasons for or against particular decisions or course of action. Accordingly, I find that record 6 does not meet the test in the first part of section 29(1) of the FOI Act.

I make a similar finding in relation to pages 19 and 20 of record 9, and record 10. In relation to the relevant parts of record 9, as outlined above this information relates to organisation charts within the Hospital and I cannot envisage any manner in which this information could be said to relate to the deliberative processes of an FOI body. Record 10, meanwhile, to my mind contains a summation of matters discussed in previous correspondence between the Hospital and the NSS, as well as referring to a future meeting at which certain outstanding questions arising from the correspondence will be discussed, and requesting certain information in relation to the organisation of the NCSL. Again, in my view, none of this information reveals the thinking process of any of the relevant FOI Bodies. The record largely takes the form of a summing-up exercise (as well as referencing in general terms some proposed future steps), and in that sense tends to disclose the outcomes of the deliberations of the bodies, rather than the deliberative processes themselves. This is insufficient to bring the material in the record within the scope of section 29(1)(a).

In circumstances where I have determined that the records at issue do not fulfil the requirements of section 29(1)(a), I am not required to consider the public interest test in section 29(1)(b). I find that neither record 6, pages 20 and 21 of record 9, nor record 10 are exempt from release under section 29(1) of the FOI Act.

Section 30(1)

Section 30(1)(b)

The hospital relied on section 30(1)(b) of the FOI Act to withhold records 1, 3, 4, 7, 8, 9 and 10. In circumstances where I have found the first four of these records, as well as record 9 (apart from pages 20 and 21), to be exempt under section 36(1)(b), I do not need to examine the extent to which they may also be exempt under section 30(1)(b). It therefore remains for me to examine the applicability of section 30(1)(b) to pages 20 and 21 of record 9, and to record 10.

Section 30(1)(b) provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff). Section 30(1)(b) is a ‘harm based’ exemption, i.e. it applies where the granting of access to a record can reasonably be expected to cause a particular prejudice or harm. An FOI body seeking to rely on section 30(1)(b) of the FOI Act must show how the harm anticipated could reasonably be expected to result from the release of the record(s). In particular, the body should identify the potential harm to the performance by an FOI body of any of its functions relating to management that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur.

Furthermore, an FOI body seeking to rely on section 30(1)(b) should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. A claim for exemption under these provisions must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. A claim for exemption pursuant to paragraph (b) which is class-based is not sustainable e.g. a claim for exemption for ‘any’ draft report.

When invoking section 30(1)(b), the FOI body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Establishing "significant, adverse effect" requires stronger evidence of damage than, for example, "prejudice" (as per section 30(1)(a) of the FOI Act). In other words, not only must the harm be reasonably expected, but it must also be expected that the harm will be of a significant nature.

In its submissions, the Hospital argued that releasing the records at this time could adversely affect the functions of the NCSL screening service and would also adversely affect its future negotiations with the NSS. It cited the possibility of adverse publicity in this regard, which it argued would result in a reduction of women attending for cervical screening, which would ultimately result in cases of cancer going undetected. The Hospital also argued that that the capacity to further develop the NCSL, which includes the function of recruitment and retention of staff necessary to enable the expansion of its screening capacity, would be adversely affected by release of the records.

I have considered the arguments made by the Hospital under section 30(1)(b) and find as follows. Firstly, although the Hospital did not explicitly identify a function related to management that it considered would be affected by the release of the records at issue, I accept that the material contained in the records does relate to the Hospital’s management functions, and specifically to the establishment and operations of the NCLS.

I am less satisfied that the Hospital has demonstrated how the harms to those functions that it has identified can reasonably be expected to flow from the release of the records at issue. The Hospital has made a number of general assertions in relation to such harms, but I cannot identify any specific content in either pages 20 or 21 of record 9, or in record 10, that I consider would result in a reduction of women attending for cervical screening. This is particularly so in circumstances where, as outlined above, the fact that there have been issues in getting the NCSL operational is a matter of public knowledge and has already been covered in national media. Similarly, I can identify nothing in the records at issue that I consider would affect future negotiations between the Hospital and the NSS. I must also dismiss the Hospital’s concerns regarding the possibility of adverse publicity arising from the release of the records because, as outlined above, under section 13(4) of the FOI Act I am prohibited from taking the possible motivations of the applicant into consideration, save insofar as they might be relevant to questions of the public interest. Under section 22(12)(b) of the FOI Act, the onus rests with a public body that seeks to withhold records that such withholding is justified. I find that the Hospital has not satisfied this requirement in relation to section 30(1)(b).

Accordingly, I find that section 30(1)(b) does not operate to exempt from release pages 20 and 21 of record 9, or record 10.

Section 30(1)(c)

As outlined above, certain third parties also cited section 30(1)(c) as a basis for withholding the records. In particular, in its submissions the NSS argued that records 1 to 9 were exempt from release under section 30(1)(c). In circumstances where I have found these records, apart from pages 20 and 21 of record 9, to be exempt under section 36(1)(b), it only remains for me to examine the applicability of section 30(1)(c) to the relevant parts of the latter record.

Section 30(1)(c) provides that that an FOI body may refuse to grant an FOI request if access to the record concerned could, in the opinion of the body, reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body.

Section 30(1)(c) is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of the Government or an FOI body. It is important to note that this exemption does not contain a harm test. As such, it is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc. There is no requirement to take a view on the consequences of the disclosure of those positions or that disclosure would have an adverse effect on conduct by the Government or the FOI body of its negotiations.

As outlined above, the relevant material at pages 20 and 21 of record 9 comprises two organisation charts within the Hospital. Simply put, I cannot see any manner in which this material discloses any of the information relating to the negotiating position of an FOI body. This is especially so in the case of page 20 which, as outlined above, is virtually identical to information put into the public domain by the Hospital itself in its annual report for 2021.

Accordingly, I find that pages 20 and 21 of record 9 are not exempt from release under section 30(1)(c) of the FOI Act.

Section 35(1)(a)

Section 35(1)(a) of the FOI Act deals with information provided to an FOI body in confidence. It was cited by a relevant third party as a basis to withhold certain information in the records that I have already determined is exempt from release under section 36(1)(b). Accordingly, I am not required to examine the applicability of section 35(1)(a).

Section 37(1)

The Hospital relied on section 37(1) of the FOI Act to withhold records 2 and 3. Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies. Personal information for the purposes of the FOI Act is defined in section 2.

In circumstances where I have already found records 2 and 3 to be exempt from release under section 36(1)(b), I am not required to examine the extent to which they might also be exempt under section 37(1).  However, as outlined above, in the course of carrying out this review I formed the view that section 37(1) may be applicable to certain records additional to those in respect of which the HSE specifically cited it. In particular, I note that record 10, which I have not found to be exempt under any other relevant provisions of the FOI Act, contains the surnames of a number of doctors. I have considered whether this information should be redacted from the record under section 37(1). I find, on balance, that it should not. It is notable that, in its submissions, the Hospital itself did not seek to exempt the material in record 10 under section 37(1). Moreover, I consider that the information relating to individuals that appears in record 10 falls within the scope of Paragraph (I) of section 2. This paragraph excludes from the definition of personal information  "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid ...". This brings the relevant material in record 10 outside the scope of section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Hospital’s decision. I find that records 1 to 5, records 7 and 8, and record 9 (apart from pages 20 and 21) are exempt from release under section 36(1)(b) of the FOI Act. I do not find that record 6, pages 20 to 21 of record 9 or record 10 are exempt from release under any of the relevant provisions of the FOI Act, and I direct the release of that information.

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 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.

Neill Dougan

Investigator