Case number: OIC-94883-X8X6D2

Whether SHS was justified in refusing access to a report about a residential centre under sections 29, 30(1)(a), 30(1)(b), 35, 36(1)(b), 36(1)(c) and 37(1) of the FOI Act

21 April 2021

Background

On 17 February 2020, the applicant made an FOI request to SHS for board minutes, a specified report from 2018 and two other specified reports from 2017. On 26 May 2020, SHS issued a decision. It granted access to certain information and refused access to the remaining records under sections 29, 30, 35 and 37(1) of the FOI Act. On 10 June 2020, the applicant applied for an internal review. On 3 July 2020, SHS issued an internal review decision, in which it varied the exemptions relied upon in relation to certain information. On 3 July 2020, the applicant applied to this Office for a review of SHS's decision.

In conducting my review, I have had regard to the correspondence between the applicant and SHS as outlined above and to the correspondence between this Office and both parties, and the content of the record that was provided to this Office by SHS for the purposes of this review.

Scope of this Review

During the review process, the Investigator clarified with both parties that only Record 3 falls within the scope of this review. Furthermore, during the review process, SHS claimed additional exemptions over Record 3, under sections 29, 36(1)(b) and (c) of the FOI Act. The Investigator notified the applicant of this. Accordingly, the scope of this review is confined to whether SHS was justified in refusing access to Record 3 under sections 29, 30(1)(a), 30(1)(b), 35, 36(1)(b), 36(1)(c) and 37(1) of the FOI Act.

Preliminary Matters

Before considering the exemptions claimed, I wish to note the following points. First, SHS says that it is subject to a number of legal, regulatory, contractual and policy requirements. It says that these make “ample provision” for “disclosure to the public of all information deemed relevant or desirable in the public interest” and the fact that other methods of scrutiny are available “diminishes the weight that might be accorded to any public interest in favour of disclosure of particular aspects of the report”. I should say that I do not accept this as a general proposition. FOI bodies such as SHS are subject to various obligations. In addition to this, the Oireachtas has provided for them to be subject to the FOI Act. My function is to review the decision of the FOI body under the provisions of the FOI Act, including the public interest test where relevant.

Secondly, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the record and the level of detail I can discuss in my analysis are limited.

Thirdly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Finally, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" as the FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Analysis and Findings

Having examined the content of the record and SHS’s submissions, I believe it is appropriate to consider sections 30 and 37 first.

Section 30 – Functions and Negotiations of FOI Bodies

Section 30(1)(a)

SHS claims that the record is exempt under section 30(1)(a). Section 30(1)(a) allows an FOI body to refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice the effectiveness of tests, examinations etc. conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. The Commissioner accepts that section 30(1)(a) is not aimed solely at investigations, inspections or evaluations now in progress but may also cover similar exercises conducted in the future. Section 30(1) is subject to a public interest test under section 30(2).

SHS says that it is required to conduct certain audits and also conducts its own investigations. It says this report was internally commissioned to elicit “candid, warts-and-all” views. It says that staff who participated were assured that the report would not use their names or identities. It says that disclosing it could reasonably be expected to prejudice the effectiveness of its investigations and procedures. It says that conducting an effective investigation needs a culture of full disclosure and cooperation. It refers to an incident of adverse publicity around another SHS location, following which staff refused to engage with management. It says that it is reasonable to expect from that experience that if this report is released, staff will not engage or engage as fully as is necessary for an investigation, which means that the methods used by SHS for investigations will be adversely affected.

The record contains the following kinds of information: the report’s methodology, background facts about the residential unit (e.g. its funding sources and staffing arrangements); issues and incidents which have arisen; feedback from an online questionnaire; feedback from interviews with staff and residents; the report’s recommendations; and an action plan of issues, findings and management responses. Having examined its content, I am satisfied that the record relates to an investigation for the purposes of section 30(1)(a).

In assessing whether disclosing it could reasonably be expected to result in the harms alleged, I consider it appropriate to distinguish between the different kinds of content and what they would disclose if released. It seems to me from the candid tone of the direct quotes from (unnamed) staff, highlighted in blue font on pages 15-26, that those comments were made solely for the purpose for the report. I am also cognisant that staff were given assurances of confidentiality. I accept that staff may be less likely to be as forthcoming if such detailed feedback were disclosed to the world at large. I am therefore satisfied that disclosing this level of detail could reasonably be expected to prejudice the effectiveness of investigations. I find that section 30(1)(a) applies to it.

The remaining information comprises the report’s methodology, background, issues and incidents, summaries of feedback in prose, graphs and pie-charts, recommendations, and an action plan. I do not accept that staff would not cooperate with future investigations if this information were disclosed. SHS drew my attention to the fact that HIQA has published inspection reports about the residential unit concerned. Those reports contain information about the unit and incidents which have arisen, including in 2017, the year of this report. Staff would therefore be aware that much information about the unit is publicly available. I also note that the report states that staff agreed that the findings were accurate and the actions welcomed, which indicates agreement with its content. Furthermore, it does not necessarily follow that disclosing this information would lead to unwelcome publicity. Even if there might possibly be unwelcome publicity about issues in 2017, I am not satisfied that disclosure could therefore reasonably be expected to prejudice investigations or procedures. It would be open to SHS to clarify or contextualise matters if necessary. Finally, the remaining information does not name staff and excludes direct quotes. I consider the issue of personal information separately under section 37 below. As such, its disclosure would not seem to me to undermine the conditions of anonymity and confidentiality under which staff provided information. I find that section 30(1)(a) does not apply to the remaining information.

Given this finding, I am required to apply the public interest balancing test under section 30(2) in relation to the staff quotes. SHS submits that there is no public interest in granting access to the specific content of the report. At the outset of its submission, it says that the Supreme Court stated in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors 2020 [IESC] 57 that “the public interest will in fact normally be served by the operation of the exemption itself, which provides for refusal of an FOI request.” In this regard, the Supreme Court said 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” (my emphasis). I do not believe that this statement should be construed as suggesting that as a general principle, the public interest will normally be served by a record being found to be exempt. Moreover, the Supreme Court found that a record cannot be said to be exempt until both limbs of the test for exemption are met.

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. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

On the one hand, section 30(1)(a) itself reflects the public interest in FOI bodies conducting investigations effectively and I accept that there is a public interest in SHS being able to conduct its investigations effectively. I also accept that there is a public interest in SHS receiving feedback through candid comments from staff in the course of such investigations. On the other hand, I must consider whether there is a public interest in disclosing the specific content of the information to which I have found section 30(1)(a) to apply. This report concerns the standards of practice and culture in a residential unit for people with complex support needs and intellectual disabilities. I find no relevant public interest in granting access to the direct quotes that, on balance, outweighs the public interest in SHS conducting effective investigations and receiving feedback through candid comments from staff in the course of such investigations. I therefore find that the public interest would, on balance, be better served by refusing to grant access to this information. I find that SHS was justified in refusing access to it under section 30(1)(a) of the FOI Act.

Section 30(1)(b)

SHS claims that the record is exempt under section 30(1)(b). Section 30(1)(b) allows an FOI body to refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, 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) is subject to a public interest test under section 30(2).

SHS says that releasing the report could have a serious adverse effect on the performance of its functions relating to management (including industrial relations and staff management). It refers to the same incident of adverse publicity and says there is precedent for similar grievances arising and that publishing the report risks undermining cooperation from staff. It reiterates that much information was given on condition of confidentiality and anonymity and were it to be disclosed, it is reasonable to expect an adverse effect on management. It makes the same arguments on the public interest as in relation to section 30(1)(a). Given my finding under section 30(1)(a), I am only required to consider this in relation to the remaining information.

Establishing "significant, adverse effect" requires stronger evidence of damage than the "prejudice" standard of section 30(1)(a). In other words, not only must the harm be reasonably expected, but it must also be expected that the harm will be of a more significant nature than that required under section 30(1)(a). I have outlined the content of the remaining information above. I am not satisfied that disclosing it could have a significant adverse effect on the performance of SHS’s functions relating to management. First, it does not name staff and excludes direct quotes. I consider the issue of personal information separately under section 37 below. As such, its disclosure would not seem to me to undermine the conditions of anonymity and confidentiality under which staff provided information. Secondly and as noted above, according to the report, staff agreed that its findings were accurate and the actions welcomed. Finally, even if staff were to question management if this particular report were disclosed under FOI, I do not accept that this possibility amounts to a “significant, adverse effect” on the performance of SHS’s management functions. I find that section 30(1)(b) does not apply and SHS was not justified in refusing access to the remaining information under section 30(1)(b). Given this finding, I am not then required to consider the public interest test under section 30(2).

Section 37 - Personal information

Section 37(1)

SHS claims that the record is exempt under section 37(1) of the FOI Act. Section 37(1) provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term “personal information” as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition, including “(i) information relating to the educational, medical, psychiatric or psychological history of the individual”. Information which comes within any of the fourteen categories specified at paragraphs (i) to (xiv) is personal information - there is no requirement for it to also meet the requirements of paragraphs (a) or (b).

Paragraphs I and II of section 2 of the FOI Act exclude certain matters from the definition of "personal information", including the names of staff members of an FOI body and information relating to their office, as well as the names of service providers to FOI bodies and information relating to their service. The Commissioner takes the view that this exclusion is intended, in essence, to ensure that section 37 will not be used to exempt the identity of a public servant while carrying out his or her official functions, but does not deprive public servants of the right to privacy generally.

SHS says that if the report is released, it would be a matter of time before the location and individual staff and clients were identifiable, and information relating to them. It says that although nobody is named, people with a knowledge of SHS would most likely be able to identify the location and the clients. It points to certain information about client needs and staff, which it says constitutes personal information. It also says that the personal information includes data and direct comments by staff, who gave information in confidence and anonymity. I have already found direct comments by staff to be exempt under section 30 above. I therefore do not need to consider that information further.

As SHS acknowledges, the report does not name staff or clients. The Commissioner accepts that an individual may not be named in a record, yet may still be identifiable. That said, section 37 provides for the refusal of a request where access to the record concerned would involve the disclosure of personal information (my emphasis). It seems to me that the mere possibility of such disclosure occurring, no matter how remote, is insufficient for section 37 to apply. The question I must consider is whether the disclosure of the record would involve the disclosure of personal information about an identifiable individual.

Having examined the content of the record and considered SHS’s submission, I am satisfied that access to the information listed below would involve the disclosure of personal information. This information comprises the specific needs of certain residents and the leave details and specific needs of the staff members of, or service providers to, an FOI body which do not fall within the exclusions at Paragraphs I and II of section 2:

  • Page 2: the last five words of the second sentence
  • Page 2: the last six words of the third sentence
  • Page 5: the penultimate paragraph (starting “Complaint Reviewed”)
  • Page 6: the third and fourth columns, headed “Resident” and “Number”
  • Page 6: the second paragraph (starting “Thus”) and the last sentence of the third paragraph (starting “It was further”) and the first two bullet points under “Issues”
  • Page 7: (under “Staffing”) the last five words of the second sentence
  • Page 7: (under “Staffing”) the last six words of the third sentence
  • Page 8: the second sentence in the fourth paragraph (starting “It was reported”)
  • Page 9: the second sentence
  • Page 10: the last sentence of the fourth “issue” paragraph
  • Page 27: the third and fourth paragraphs (starting “Feedback from”)
  • Page 1 of Action Plan: the first two bullet points under “Findings” (starting “No of”)
  • Page 29 of Action Plan: the last five words of the second sentence (ending “residents.”) and the last six words of the third sentence under “Staffing” (ending “leave.”)
  • Page 32 of Action Plan: the second paragraph in the second column
  • Page 33 (ending at the top of page 34) of Action Plan: the two paragraphs in the third column under “Cultural Audit”

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply to the information concerned. That is to say, (a) it does not relate to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5) - The Public Interest

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. It has not been argued that releasing the records would benefit the individuals to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances. I will therefore consider section 37(5)(a).

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications. As noted above, the Supreme Court said that a general principle of openness does not suffice to direct release of records in the public interest and there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Also, the strong protection afforded to privacy rights under FOI is consistent with Article 8 of the European Convention on Human Rights. Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. It is also relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large given that the Act places no constraints on the uses to which the information contained in those records may be put.

I find no relevant public interest in granting access to the information listed above that, on balance, outweighs the public interest in upholding the privacy rights of the individuals whose personal information would be disclosed by releasing it. In the circumstances, I find that section 37(5)(a) does not apply. I find that SHS was justified in refusing access to the information listed above under section 37(1) of the FOI Act.

However, I am not satisfied that access to the remaining information would involve the disclosure of personal information about identifiable individuals. As I observed earlier, the mere possibility of such disclosure occurring, no matter how remote, is insufficient for section 37 to apply. I am also mindful that certain information relating to staff or service providers to FOI bodies is excluded from the definition of personal information. Furthermore, I do not believe that the name of the SHS location amounts to personal information about an identifiable individual under section 37 of the FOI. I find that section 37(1) does not apply to the remaining information. I am therefore not required to consider sections 37(2) or (5) of the FOI Act in relation to it. I find that SHS was not justified in refusing access to it under section 37.

I should note that SHS says that the report would be entirely misleading if it were shorn of personal information. It says that both quantitative and qualitative data are necessary to understand it. I have examined the record and had regard to section 18. I am satisfied that it would be practicable to provide a redacted copy which would not be misleading. I consider that this would be a reasonable and proportionate approach in the circumstances.

I will now turn to the other exemptions claimed.

Section 29 – Deliberations of FOI Bodies

Sections 29(1)(a) & (b) - Deliberative Process and the Public Interest

Section 29(1) of the FOI Act provides that an FOI body may refuse to grant an FOI request if the record contains matter relating to the deliberative process and granting the request would 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 public bodies to show to the satisfaction of the Commissioner that both requirements are met. The public interest test contained in this provision differs from the public interest test found in other exemptions under the FOI Act. To avail of this exemption, the public body must be of the opinion that releasing the records would be against the public interest. Other exemptions require the public body to be of the opinion that the public interest would be better served by release.

SHS says that the report involved a gathering of information and findings, which were weighed and considered carefully. It refers to the previous adverse staff reaction to publication of issues reflecting negatively on it and a lack of staff cooperation resulting from that. It says that disclosure would have a chilling effect on the future commissioning of such a report and the candid involvement of staff. It also says that it would be contrary to the public interest to grant access to the record given the adverse impact on the interests protected by sections 29, 30(1)(a) and (b), 35, 36(1)(b) and (c) and 37. It says that section 29(2) does not apply.

Section 29(2)(b) provides that the exemption at section 29(1) does not apply to a record insofar as it contains factual information. Section 2 of the FOI Act states that "factual information" includes information of a statistical, financial, econometric or empirical nature, together with any analysis thereof. The Commissioner regards factual information as including material presented to provide a factual background to the central topic in a record, and that factual information is distinguishable from information in the form of a proposal, opinion or recommendation. Having examined the report, I consider that it contains a great deal of factual information as opposed to proposals or recommendations; e.g. background facts about the residential unit and issues and incidents which have arisen. However, given my conclusion on section 29(1), I do not consider it necessary to separate out the factual information from the deliberative material for the purposes of this decision. That said, I consider it pertinent that the record contains much factual information and return to this point below.

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. In this case, the stated focus of the report was to explore standards of practice, investigate the culture, elicit views, draw conclusions and make recommendations. The report contains findings and recommendations. It states that the party who wrote the report met with management and staff before finalising the action plan which is set out at the end of the report. I accept that the record forms part of a wider deliberative process comprising a review of the safeguarding arrangements within the unit. I therefore find that section 29(1)(a) applies to the remaining information. I am then required to consider section 29(1)(b).

Section 29(1)(b)

The Commissioner has found that the FOI Act clearly envisaged that there will be cases in which disclosing the details of an FOI body’s deliberations - whether before or, in some cases, after a decision based on those deliberations has been made - would be against the public interest. However, this was not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 of the Act should be substantiated and supported by the facts of the case.  It is important that the FOI body shows to the satisfaction of the Commissioner how granting access to the particular record(s) would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.

I must therefore consider the harms claimed by SHS. It says that disclosure would have a chilling effect on the future commissioning of such a report and staff’s cooperation and candid involvement. I have already addressed the substance of this harm in my consideration of section 30(1) above. I am not satisfied that disclosing the remaining information would result in these harms. SHS also argues that it would be contrary to the public interest to disclose the record given the impact on the interests protected by other exemptions. I consider the other exemptions claimed elsewhere in this decision. I do not believe that it is appropriate or necessary to address them separately in the context of my consideration of section 29.

I must decide whether releasing the remaining information would be contrary to the public interest. In the circumstances, I am not satisfied that it would. In reaching this conclusion, I am mindful of the fact that much of the content comprises factual information, rather than deliberative material which, as I have explained above generally discloses accounts of the weighing up of information and options in order to make decisions. Furthermore, I have considered the alleged harm to future reports above. Finally, I am cognisant of the passage of time since the report and the fact that SHS says that it has made many improvements to the unit, which has since received positive inspection reports from HIQA. I find that section 29(1)(b) does not apply and SHS was not justified in refusing access to the remaining information under section 29.

Section 35(1) – Information obtained in confidence

Section 35(1)(a) of the FOI Act applies to a record containing information given to an FOI body in confidence. Four requirements must be satisfied for a record to be exempt under section 35(1)(a): the information was given to an FOI body in confidence; the information was given on the understanding that it would be treated by the FOI body as confidential; disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons; and it is important to the body that such further similar information should continue to be given to the body. Section 35(1)(a) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request (see section 35(3)).

Section 35(1)(b) of the FOI Act provides that an FOI body shall refuse to grant an FOI request if disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column 3 in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law. 

Section 35(2) disapplies section 35(1) to a record which is prepared by a head or any other person (being a director, or member of the staff of, an FOI body or a service provider) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider. As section 35(1) does not apply where the records fall within the terms of section 35(2), I should consider section 35(2) at the outset. Section 2 of the FOI Act defines “service provider” as “a person who, at the time the request was made, was not an FOI body, but was providing a service for an FOI body under a contract for services and contract for services in this definition includes an administrative arrangement between an FOI body and another person”.

SHS says that the report was prepared by a service provider to SHS. Therefore, section 35(1) will not apply to the record unless disclosing it would constitute a breach of a duty of confidence owed to a person other than an FOI body/service provider etc. under an agreement or statute or otherwise by law. SHS says that the information provided by non-employee agency staff is clearly provided by agency staff in confidence and on the understanding that it would be treated as confidential, used for internal purposes and not be disclosed publicly, save where there was a legal obligation to do so for safeguarding or similar reasons. It says that disclosing the information concerned would constitute an unauthorised use of that information to the detriment of the staff that communicated it. It says that the majority of staff are agency staff and are accordingly not members of staff of an FOI body. The report itself notes that many of the agency staff are long-serving and have been with SHS for many years.

It seems to me that the staff who participated in this report will either have been members of staff of SHS or service providers to SHS. Accordingly, SHS has not identified an entity other than an FOI body or service provider to whom a duty of confidence is owed. Neither is any such duty of confidence evident to me from my examination of the report. I therefore have no basis on which to find that disclosing it would constitute a breach of a duty of confidence provided for, which is owed to a person other than an FOI body or a service provider. I find that section 35(2) disapplies section 35(1) and that SHS was not justified in refusing access to the remaining information under section 35(1) of the FOI Act.

Section 36(1) - Commercial Sensitivity

Section 36(1)(b) provides that an FOI body shall refuse to grant an FOI request if the record concerned 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. 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 which could occur must be specified with a reasonable degree of clarity. Section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than refusing the request (section 36(3) refers).

Section 36(1)(b)

SHS says that disclosing the record, and any negative information in it, could reasonably be expected to result in a material loss to it or could prejudice its competitive position, as an organisation in receipt of funding from the HSE and private donors. It says that disclosure could cause funders to review their position. It refers to its previous experience of adverse publicity and says that it has experience of staff leaving or not engaging, which could cause it material loss.

SHS submits that the subsections have a low threshold for applicability. I noted above that the threshold for the second limb of section 36(1)(b) is lower than the first limb. Nonetheless, as the Supreme Court observed in University College Cork and the Information Commissioner & Ors 2020 [IESC] 58, 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 examined the content of the record and considered the submissions. For section 36(1)(b) to apply, there must be a link between disclosure and the harms alleged. However, it is not clear to me that disclosing this record could prejudice SHS’s competitive position by leading funders to review their position. Neither is it apparent that disclosing the record could reasonably be expected to cause SHS material loss by leading staff to leave or not engage.

As noted above, HIQA inspection reports about the unit are publicly available. I note that the HIQA inspection report from 2017, the same year as this record, contains negative information and is publicly available for the HSE and other funders to see. Equally, SHS says that it has made many changes to the unit and the most recent HIQA inspection report from 2019 comments positively on the unit. I can see that HIQA’s inspection report from 2019 notes significant improvements in the unit and comments positively on compliance. It therefore seems to me that while disclosing this record might possibly result in unwelcome publicity about matters that arose in 2017, which are by SHS’s own account historic, it does not follow that it could result in either of the harms envisaged in section 36(1)(b).

Section 36(1)(c)

Section 36(1)(c) of the FOI Act provides that an FOI body shall refuse to grant an FOI request if the record concerned contains information whose disclosure 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 section 36(1)(c) 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 person seeking to rely on section 36(1)(c) 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. Section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than refusing the request (section 36(3) refers).

SHS says that it is currently negotiating the transfer of residents and staff and of a service and any adverse publicity resulting from disclosure could jeopardise this. However, it does not give any detail of the nature or stage of such negotiations and the way in which the particular content of this report could impact on their actual conduct and/or outcome. In other words, it does not substantiate its assertion. Once more, I consider that while disclosure might possibly result in unwelcome publicity about issues in 2017, I do not accept that it could result in the harm envisaged in section 36(1)(c).

Given these findings, I do not need to consider sections 36(2) or (3). I find that SHS was not justified in refusing access to the remaining information under sections 36(1)(b) or (c).

Decision

Having carried out a review under section 22(2) of the FOI Act, I vary the decision of SHS as follows. I affirm its decision to withhold certain information under sections 30(a) and 37(1) of the FOI Act, as outlined above. I annul its decision to withhold the remaining information and direct its release.

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.

 

Deirdre McGoldrick

Senior Investigator