Case number: OIC-139776-V1H0T8
2 October 23
On 2 March 2023, the HSE published an Executive Summary of an investigation into a Protected Disclosure (PD), concerning the Phoenix Park Community Nursing Unit at St Mary’s Hospital (the Hospital) during the Covid-19 pandemic. A PD is a disclosure by a worker of relevant information that came to the attention of the worker in a work-related context and where the worker reasonably believes that the relevant information tends to show relevant wrongdoing.
In pertinent part, the Summary outlines how the applicant had requested the PD investigation team to examine an alleged instruction to remove certain emails, as noted in the minutes of an internal Hospital meeting. It says that the investigation team sought instruction from the HSE, because the matter concerned a period not covered under its terms of reference. The Summary explains that the investigation’s scope did not extend to matters outside of the PD. It says that, “on that basis”, the matter raised by the applicant was deemed to be outside the scope of the investigation, and that the investigation’s remit was not extended.
The applicant’s FOI request of 2 March 2023, as subsequently clarified by him, sought access to all records relating to the decision that the investigation would not include the matter he had raised. He also sought access to records of what happened to his letter and of what actions and decisions were taken and by whom.
The HSE’s decision of 27 April 2023 granted access to four records and refused access to two others under section 42(ja) of the FOI Act. Generally speaking, section 42(ja) provides that the FOI Act does not apply to a record relating to a PD.
The applicant sought an internal review on 24 May 2023. The HSE’s internal review decision of 20 June 2023 affirmed its refusal of the two records under section 42(ja).
On 21 June 2023, the applicant applied to this Office for a review of the HSE’s decision. During the review, the HSE located a further relevant record (record 6A), which it released in part. It relied on section 42(ja) in relation to the remainder of record 6A.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the HSE and the applicant, as well as to copies of the records at issue and the provisions of the FOI Act.
The applicant asks for this Office to investigate the alleged instruction, saying that he does not accept the HSE’s explanation of the matter. However, it is important to note that this Office has no role in examining the HSE’s performance of its functions.
Accordingly, the scope of this review is confined to the sole issue of whether the HSE’s decision to refuse access to records 5 and 6 in full, and the remainder of record 6A, was justified under the FOI Act.
Section 42(ja) – restriction of FOI Act regarding records relating to PDs
The Protected Disclosures Act 2014 provides certain protections to those who make protected disclosures. The Act was supplemented by the Protected Disclosures (Amendment) Act 2022 (the 2022 Amendment Act), which came into operation on 1 January 2023. Section 20 of the 2022 Amendment Act amends the FOI Act by inserting a new sub-section, namely section 42(ja).
Section 42(ja) provides that the FOI Act does not apply to “a record relating to a report, within the meaning of the Protected Disclosures Act 2014, made under that Act, whether the report was made before or after the date of the passing of the Protected Disclosures (Amendment) Act 2022”. Section 4 of the 2022 Amendment Act defines “report” or “to report” as “the oral or written communication of information on relevant wrongdoings”.
In considering whether the refused records are records “relating to” a report made under the Protected Disclosures Act, I have adopted the reasoning in the case of EH v The Information Commissioner  IEHC 182. In that case, the High Court considered the question of whether records “related to” the requester’s personal information. The Court found that the test to be applied to determine whether a record “relates to” the personal information was “whether there is a sufficiently substantial link” between the requester’s personal information and the record in question.
As the applicant is aware, the HSE says that discussions on whether a matter is or is not within the terms of an investigation into a PD is a matter directly “relating to” that PD. It also says that the withheld records are inextricably linked to details about the PD and the investigation thereof. I have received no comment from the applicant on the HSE’s position.
Section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. Accordingly, I must limit my description of the withheld records, which I have carefully examined.
I note that the records comprise correspondence between the PD investigation team and the HSE about matters that arose during the investigation. While the particular issues raised by the applicant do not appear to concern the PD itself, I have considered whether there may still be “a sufficiently substantial link” between the withheld records and the PD for the purposes of section 42(ja).
One of the matters addressed in the correspondence was whether the terms of reference for investigating the PD extended to the issues raised by the applicant. In particular, the relevant part of record 5 describes and comments on the PD in the specific context of the applicant’s concerns. Thus, I am satisfied that record 5 includes details about the PD that are inextricably linked to details about the issues raised by the applicant. Records 6 and 6A resulted from and relate to record 5.
In all of the circumstances, I am satisfied that there is a sufficiently substantial link between the withheld records and the PD. I find that the withheld records relate to a report made under the Protected Disclosures Act 2014 and that section 42(ja) of the FOI Act applies to them.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s refusal of the records under 42(ja).
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.