Whether HIQA was justified in refusing access to a draft report of an inspection of a named care facility under sections 29(1) and 30(1)(a) of the FOI Act
8 January 2020
In a request dated 18 July 2019, the applicant sought access to all records, including draft reports, held by HIQA in relation to an August 2017 inspection of a named care centre. In its decision dated 14 August 2019, HIQA refused access to a draft inspection report under sections 29(1) and 30(1)(a) of the FOI Act. The applicant sought an internal review of HIQA’s decision and on 29 August 2019, HIQA affirmed its original decision. On 29 September 2019, the applicant sought a review by this Office of HIQA’s decision.
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 between this Office and both HIQA and the applicant during the review. I have also had regard to the contents of the record concerned. I have decided to conclude this review by way of a formal, binding decision.
Scope of Review
This review is concerned solely with whether HIQA was justified in refusing to grant access to the draft inspection report of the named care centre under sections 29(1) and 30(1)(a) of the FOI Act.
Analysis & Findings
The record at issue consists of a draft report of an inspection HIQA conducted into a named HSE managed centre for persons with disabilities.
In its submission of 19 November 2019 to this Office, HIQA stated that the centre was inspected in August 2017 to assess whether the service provider (the HSE) was in compliance with the relevant regulations and standards under the Health Act 2007 as amended. It said that the Health Act provides limited guidance on the inspection mechanism itself, but that HIQA had a duty to apply fair procedures from the outset of the process as to do otherwise would expose HIQA to judicial review of its decisions and challenges in defamation law. It said that it has put in place systems and processes in order to ensure the integrity of its inspection process and the resulting outputs of that process.
HIQA added that to ensure regulatory decisions are made in a fair and consistent manner, it has adopted the “Authority Monitoring Approach” (AMA), a framework which provides inspectors with a range of procedures, protocols and tools to assist them with carrying out their statutory functions of inspection under the Health Act. It said that key parts of the process include a review of the draft inspection report by management and the opportunity for the provider to make submissions on the draft report, including the identification of any factual inaccuracies.
HIQA said that following the inspection of the centre in August 2017, the inspectors prepared a draft report which required review by management in line with AMA. It said that the tools which accompany this review require quality assurance and verification to be completed within approved systems and time lines, for example, a draft report must be completed within 15 days of the inspection. Thereafter, a timeline of 10 days applies for quality assurance review by management and a further 2 days for the draft report to be issued to the provider for the purpose of factual accuracy checks and feedback. These timelines and processes are driven by HIQA’s IT case management system.
In this case, however, HIQA said that at the time the draft inspection report was submitted by the inspectors through the case management system, the key persons in the inspectors’ team were on leave and line management was not in a position to complete the quality check of the draft report within timelines. As the draft report contained regulatory judgment which were non compliant, it said that it was essential that its procedures were followed appropriately. It said as it was not compliant with its processes, those processes having been designed to ensure the accuracy and integrity of the regulatory findings in inspection reports, a decision was taken that the draft report should not proceed to the next step in the inspection process which was for its issue to the provider for factual accuracy check and feedback on regulatory judgments contained in the draft report. It said that as the centre was categorised as high risk, and escalatory regulatory action and/or enforcement was possible given the level of non-compliance, it was essential that all procedures and processes were followed correctly.
HIQA said that for those reasons, it decided to deactivate the inspection event which gave rise to the draft report and to schedule a new inspection process as soon as possible. That inspection took place in December 2017, the report arising from the inspection was completed in accordance with HIQA’s internal controls, and the inspection report was published in April 2018.
HIQA said that it does not intend to use any of the information within the draft report. It said the preliminary findings in the draft report were superseded by the subsequent inspection and inspection report findings. I note that the centre in question closed in early 2018.
Section 29(1) provides that a request may be refused if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the body considers that granting the request would be contrary to the public interest. These two requirements are independent. The fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to satisfy this Office both that 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.
According to HIQA, the draft report contains its preliminary regulatory findings and observations regarding the centre’s compliance with regulations and standards over the course of the two day inspection in August 2018. HIQA stated that the record contains the inspectors’ summary of feedback from residents interviewed during the inspection and the inspectors’ analysis of the centre’s level of compliance with regulations and standards.
HIQA argued that the record contains matter relating to its deliberative processes. It also stated that the regulatory judgements in the inspection report inform decisions on the exercise of the Chief Inspector’s enforcement powers under Part 8 of the Health Act. It said that other information including the regulatory profile or history of the centre’s compliance and concerns received from members of the public feed into this process. HIQA argued that the gathering of information in the inspection report and the weighing of that information by the Chief Inspector for the purpose of determining what appropriate regulatory response to take is a deliberative process under section 29(1) of the Act.
I am satisfied that the record contains matter relating to the deliberative processes of an FOI body and that the first requirement for section 29(1) to apply is met. The question I must consider, therefore, is whether the release of the record would be contrary to the public interest. For release to be contrary to the public interest, this Office would generally expect the body to identify a specific harm to the public interest flowing from release. A mere assertion without supporting evidence is not sufficient to satisfy the requirement that granting access to the record would be contrary to the public interest.
HIQA acknowledged that the public interest in openness and transparency in how public bodies such as HIQA exercise their statutory functions favours release of the record. It argued, however, that the public interest in openness and transparency has already been served to some extent by the publication of the subsequent report.
It argued that release of the record would be contrary to the public interest for a number of reasons. It argued that release would undermine the due process rights of the service providers and persons participating in the management of the centre as they were not offered a right to check the draft report for factual inaccuracies or to give feedback or challenge the regulatory judgements contained the draft. Similarly, it argued that release of the record would be contrary to the public interest in preserving the right to a good name of the provider and the persons participating in the management of the centre arising from the release of information that questions the governance and management in the centre but which has not been fact checked or verified in line with established process.
HIQA also argued that release would compromise the manner in which its Chief Inspector carries out her functions under section 41 of the Health Act as it would result in the release of an inspection report that has not been authorised by the Chief Inspector or completed in accordance with the established process for inspection reports.
Having considered HIQA’s arguments, I consider that the release of the record at issue would be contrary to the public interest. I accept that HIQA’s inspection process is designed to ensure that regulatory decisions are made in a fair and consistent manner and to assure the accuracy and integrity of regulatory findings contained in inspection reports. I am satisfied that the release of the draft report would serve to undermine the integrity of the inspection and reporting process as a result of a failure to have due regard to procedural fairness and that this would be contrary to the public interest.
It is also of relevance, in my view, that HIQA does not intend to use any of the information within the draft report and that it published the report that was prepared following the new inspection process, thereby bring openness and accountability to its exercise of its inspection functions.
In the circumstances, I find that HIQA was justified in refusing access to the draft report under section 29(1) of the FOI Act. Having found that section 29(1) applies, I do not find it necessary to consider HIQA’s arguments concerning the applicability of section 30(1)(a) to the record.
Having carried out a review under section 22(2) of the Act, I hereby affirm HIQA’s decision to refuse access to the record at issue under section 29(1) of the FOI Act.
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 not later than four weeks after notice of the decision was given to the person bringing the appeal.