Case number: OIC-133076-V7C5C4
18 October 2023
In April 2022, the Minister for Health, Stephen Donnelly appointed Ms. Maura Quinn to carry out an external review of the proposed secondment of the former Chief Medical Officer, Dr. Tony Holohan to Trinity College Dublin. This case concerns records held by the Department which relate to that review. In a request dated 5 September 2022, the applicant sought access to all correspondence created between 1 April 2022 and the date of his request between Ms. Maura Quinn and Minister Stephen Donnelly, Dr. Tony Holohan or Mr. Robert Watt (Secretary General, Department of Health). In a decision dated 28 October 2022, the Department identified 32 records as coming within the scope of the applicant’s request. It refused access to these records under section 29(1) of the FOI Act. On 3 November 2022, the applicant sought an internal review of that decision. On 24 November 2022, the Department affirmed its original decision. On 9 December 2022, the applicant applied to this Office for a review of the Department’s decision.
During the course of the review by this Office, the Minister published the external review report prepared by Ms. Quinn. When requesting submissions, this Office asked the Department to confirm whether its position remained the same in relation to the records under review, given the publication of the external report. In its submissions, the Department said that given the passage of time and the completion of the report, the exemptions relied on may no longer apply to certain records within the scope of the request and in some cases, it wished to rely on other exemptions provided for under the FOI Act. The Department released records 2, 4, 6, 10, 12, 16, 18, 20, 22, 24, and 32 to the applicant. It also granted partial access to records 3, 5, 7, 9, 13, 17, 25 and 30, with the redaction of personal contact details. The Department confirmed that in addition to relying on sections 29(1), it also wished to rely on sections 30(1)(a) or (b), 35(1) and 37(1) of the FOI Act in refusing access to the remaining records.
The Department provided the applicant and this Office with an updated schedule outlining its revised position in relation to the remaining records. This Office also updated the applicant on the Department’s revised position and provided him with an opportunity to make submissions. In communications with this Office, the applicant confirmed that he was not interested in the contact details redacted from records 3, 5, 7, 9, 13, 17, 25, 30 and he was agreeable to removing those records from the scope of the review.
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 submissions made by the applicant and the Department. 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.
The scope of this review is confined to whether the Department was justified in its decision to refuse access to records 1, 8, 11, 14, 15, 19, 21, 23, 26, 27, 28, 29 and 31 under sections 29(1), 30(1)(a) or (b), 35(1)(a) or 37(1) of the FOI Act.
Before I address the substantive issues arising, I would like to make a number of preliminary comments.
First, a review by this Office under section 22 of the FOI Act is de novo which means that in this case, it is based on the circumstances and the law as they apply on the date of the decision. It should be noted that a decision made by this Office in one particular case does not create a binding precedent for other cases.
Secondly, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, the extent to which I can describe the contents of the records at issue is somewhat limited.
As noted above, I am limited in the description of the records at issue I can provide. However, I believe it would be useful to provide some high-level detail in respect of the records. The records include email correspondence from Ms. Quinn to Minister Donnelly, Dr. Holohan and Mr. Watt attaching a draft of her report dated 7 June 2022 and providing an opportunity to comment in relation to same. The records include emails from Minister Donnelly, Dr. Holohan and Mr. Watt containing their comments in relation to this draft report and emails about circulation of the draft report. The records include an email from Ms. Quinn to Minister Donnelly attaching a revised draft of a report dated 14 June 2022 which contains certain changes to reflect the comments provided.
As outlined in the final published report, on 1 July 2022, Minister Donnelly asked Ms. Quinn to give further consideration to submissions made by Mr. Watt in relation to the level of knowledge held by Mr. Martin Fraser (then Secretary General, Department of the Taoiseach) and Ms. Deirdre Gillane (then Chief of Staff, Department of the Taoiseach) in relation to the proposed secondment. The records contain email correspondence between Minister Donnelly and Ms. Quinn in relation to carrying out this further consideration of Mr. Watt’s submissions. The records also include an email dated 27 July 2022 from Ms. Quinn to Minister Donnelly attaching a third draft report which includes a further consideration of Mr Watt’s submissions and responses from Mr. Fraser and Ms. Gillane.
There are significant differences between the draft reports contained in the records and the final published version of 17 October 2022.
Section 30 Functions and negotiations of FOI Bodies
Having regard to the content of the records, it seems to me that section 30(1)(a) of the FOI Act is the most relevant exemption provision to consider first. The Department refused access to records 14, 15, 19, 21, 23, 26, 27, 28, 29 and 31 under section 30(1)(a) of the FOI Act. These records include draft reports and comments provided to Ms. Quinn. The Department did not rely on section 30(1)(a) of the Act in relation to records 1, 8 and 11 which also contain a draft report and the comments provided to Ms. Quinn. This Office notified the applicant that it also intended to consider the applicability or otherwise of section 30(1)(a) to records 1, 8 and 11 and provided him with an opportunity to make submissions. In reply, the applicant contended that there is a strong public interest in the release of these records.
Section 30(1)(a) 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 prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Where an FOI body relies on section 30(1)(a), it should identify the potential harm in relation to the relevant function specified in the paragraph that might arise from disclosure. Having identified that harm, it should consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the records could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record and the relevant facts and circumstances of the case. Section 30(1) is also subject to a public interest test under section 30(2).
In its submissions, the Department said the external review in relation to the proposed secondment of the Chief Medical Officer involved the gathering of information from a number of sources. It said all of the information obtained was weighed up and carefully considered with a view to reflecting upon the process related to the proposed secondment. It said section 30(1)(a) was relied on because the granting of access to these records could reasonably be expected to cause harm to the procedures used in conducting reviews of this nature in the future. It said information was given in confidence and on the understanding that it would be treated as confidential during the review process and releasing the records could prejudice the giving of further similar information from persons in the future. It said it is important that similar information should continue to be given to the Department to allow it to carry out reviews in the future. It said release of this information could have an impact on the frankness and candour of participants in such a process in the future.
As outlined above, the relevant parties were provided with a copy of the draft report and were provided with a right to comment on the content of the report. This right to comment is a requirement of fair procedures and natural justice and promotes accuracy in the review process. There were a number of draft reports produced by Ms. Quinn before she finalised a report following the review process. The draft reports in this case were working documents that were subject to change as information was provided and interviews were completed. It seems to me that these draft reports have not been through the full review process and may contain information which may not accurately reflect what a person said, or may contain conclusions which were appropriately removed from the final report following feedback.
It seems to me that while parties participating in a review would be fully aware of the fact that the final report following the review would be made available, they would have a genuine and reasonable expectation that earlier drafts of a report which were prepared to ensure adherence to the principles of fair procedures and natural justice and their comments in relation thereto would be treated as confidential. If parties had concerns that drafts of the report might be released which might impinge on their entitlement to fair procedures and natural justice, they could reasonably be expected, in my view, to engage with the review with less candour and frankness than would be necessary to ensure the effectiveness of the review. I am satisfied that the release of the records at issue could reasonably be expected to prejudice the effectiveness of the procedures or methods employed for the conduct of examinations, investigations, inquiries or audits conducted by or on behalf of the Department. I find, therefore that section 30(1)(a) applies to the records at issue.
Section 30(2) The Public Interest
Section 30(2) of the Act provides that section 30(1) shall not apply if the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned. In its submissions to this Office, the Department identified a range of factors in favour of and against release of the records, as follows:
Factors in favour of release:
Factors against release:
The Department concluded that the public interest would not, on balance, be better served by granting the request. It said that releasing the records would harm its ability to carry out similar reviews in the future.
I am satisfied that that there is a significant public interest in facilitating public scrutiny of how the Department carried out its functions in relation to the proposed secondment in this case, particularly given the proposed commitment made in relation to the use of public funds. However, it seems to me that this public interest has already been served to a significant extent by publication of the report that was prepared following the external review. While I accept that the release of the draft reports and comments provided to the reviewer would bring further transparency to the review process, I believe that such additional transparency should not be at the expense of damaging the integrity of the review process itself, particularly where that process is designed to ensure that the review adheres to the principles of procedural fairness and natural justice.
There is a strong public interest in ensuring the integrity of the review process, given its objectives. As set out in the terms of reference, the review sought to determine learnings from the process related to the proposed secondment of the Chief Medical Officer and associated research proposal and make recommendations that could inform future such initiatives. In my view, in circumstances, where the publication of the final report has resulted in a significant degree of transparency around the matters that were the subject of the review, and given my finding that the release of the records could reasonably be expected to prejudice the effectiveness of the procedures employed for the conduct of such reviews, I am satisfied that the public interest would, on balance, be better served by refusing access to the records at issue.
In conclusion, therefore, I find that the Department was justified in refusing access, under section 30(1)(a) of the Act, to the records at issue. Having found section 30(1)(a) to apply, I do not need to go on to consider the applicability of section 30(1)(b), 35(1) or 37(1) to the records.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision. I find that the Department was justified in refusing access to the records at issue under section 30(1)(a) of the FOI Act.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.