Case number: 170492

Whether the Hospital was justified in refusing to grant the applicant's request for the board minutes of the Hospital and any briefing papers presented during the meetings from November 2016 to June 2017 under sections 29 (deliberative process), 30 (functions and negotiations of an FOI body), 31(1)(a) (legal professional privilege), 35 (information subject to a duty of confidence), 36 (commercially sensitive information) and 37 (personal information)

31 August 2018  

Background

On 21 June 2017, the applicant made an FOI request to the Hospital for "the board minutes of St Vincent's University Hospital and any briefing papers presented during the meetings from November 2016 to June 2017".

The Hospital's decision of 4 July 2017 refused the request under sections 29 (deliberative process) and 30(1)(b) and (c) (functions and negotiations of an FOI body) of the FOI Act. The applicant sought an internal review of the Hospital's decision on 10 August 2017. The Hospital affirmed the original refusal on 4 September 2017. On 11 October 2017, the applicant sought a review by this Office of the Hospital's decision. 

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to details of the above exchanges and to correspondence between this Office, the Hospital, third parties whose interests may be affected by my decision and the applicant. I have had regard also to the records considered by the Hospital and to the provisions of the FOI Act. 

The review took longer than I would have wished. Its complexity was, to a large extent, due to the fact that the board minutes cover a number of entities and diverse matters. The effect of this will be evident in the findings below. 


Scope of Review

This review is confined to whether the Hospital has justified its refusal to grant the applicant's request.

The Hospital's schedule of records lists minutes for six board meetings of the St Vincent's Healthcare Group (the SVHG). It argued during this review that, essentially, the request only covers information in the records about the Hospital. This Office told the applicant about the Hospital's revised position, but he did not reply. 

It is a matter of fact that part of the applicant's request specifically sought minutes of the Hospital, rather than the minutes of the SVHG. It is also a matter of fact that the SVHG is comprised of entities other than the Hospital. The minutes concern the Hospital and various other parts of the SVHG. In general terms, I accept the Hospital's argument that the scope of this review, at least in so far as these records are concerned, should be confined to matters concerning the Hospital. 

The minutes contain some discrete sections regarding elements of the SVHG other than the Hospital, and it is reasonably practicable to redact these. However, some parts contain references to the Hospital that are inextricably linked to references to other elements of the SVHG. In such circumstances, it is not feasible to exclude all references to those other elements. Neither do I intend excluding references to the SVHG itself, which by implication concerns the Hospital.

The attached Appendix sets out those parts of the minutes that I consider to be covered by the request and by this review. The matter of the briefing papers is dealt with separately below. 


Findings

In making my decision, I must comply with section 25(3) of the FOI Act, which 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 detail that I can give of the contents of the withheld records and in my analysis is very limited. 

Briefing papers

The Hospital's decisions and attached schedules do not refer to the briefing papers that were clearly requested. It confirmed to this Office that it had not considered those records. 

I accept the applicant's position that the Hospital has effectively refused this part of his request. However, with the possible exception of section 15, the application of the FOI Act's provisions (including any consideration of the public interest tests and any third party consultation that may be required) must be based on an examination of the content of the records. It is not appropriate for this Office to, essentially, act as a first instance decision maker. I have decided to annul the Hospital's effective refusal of the briefing papers and to direct it to undertake a fresh decision making process in respect of them. It is for the Hospital to identify, in the first instance, the briefing papers that are covered by the request.

Accordingly, the rest of my decision is concerned with only the minutes. For avoidance of any doubt, references to "the records" or "the minutes" in the rest of this decision are to be read as references to the parts identified above as being within the scope of this review. 

Section 22(12)(b)

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the decision making FOI body shows to the Commissioner's satisfaction that its decision was justified. 

On 21 November 2017, this Office invited the Hospital to make submissions regarding its refusal of the request under sections 29 and 30. The Investigator highlighted the requirements of section 22(12)(b). She also said that "assertions or blanket claims are generally not sufficient to meet the burden of proof under section 22(12)(b); rather, full and succinct reasoning should be provided to show how or why the particular information concerned meets the criteria of the relevant exemption provisions. Where applicable, the public interest test must also be addressed. I wish to emphasise that, as the opportunity to make focused submissions generally represents the FOI body's "last chance" to justify its decision, failure to justify a claim for exemption may lead to a decision by the Commissioner to release the records at issue."

As will be evident from my decision, the Hospital has not met the requirements of section 22(12)(b) in this case. In general terms, while it makes various assertions as to the harms that will arise from the grant of access, it does not explain how those harms arise. 

However, a decision by me to direct release of the records on this basis alone would have affected the interests of other parties. This would not be in keeping with the requirements of the FOI Act, which gives certain third parties a right to make submissions to this Office and have those submissions taken into account. Accordingly, this Office consulted with third parties whose interests would be affected by the grant of access to the records. I have carefully considered their submissions regarding the application of sections 35 and 36 of the FOI Act. 

Section 29 (deliberative process)

Section 29 is a discretionary exemption, which provides that an FOI request may be refused if (a) it contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest. 

The requirements of sections 29(1)(a) and (b) are independent 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 the Commissioner that both requirements have been met.

A deliberative process 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. 

The public interest test in section 29(1)(b) differs from the public interest test found in other exemptions under the FOI Act. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. To avail of section 29, the public body must be of the opinion that releasing the records would be against the public interest. In my view, this exemption tends more strongly towards release of records, and public bodies have a higher hurdle to overcome in demonstrating that it applies. 

Therefore, public bodies must show, to this Office's satisfaction, that release of the material at issue would be contrary to the public interest. Generally speaking, this requires a body to identify a specific harm to the public interest flowing from release. While there is nothing in the exemption itself which requires the deliberative process to be ongoing, the question of whether the process is ongoing or at an end may be relevant. Furthermore, section 29 specifically requires consideration of whether the requester would, by the release of the record(s), become aware of a significant decision that the FOI body proposes to make. 

The Hospital's arguments

The Hospital refers to a certain ongoing deliberative process and says that the records relate to combinations of advice, the results of consultations with third parties, briefings for the purposes of deliberations and consultations and the procurement of services. It says it needs to ensure that any ongoing and future activity of formulating, considering and deciding on these issues is not put at risk or compromised. 

The Hospital says that it has taken account of the right of the public to have access to information and the "public interest claims for non-disclosure and specifically the need to preserve confidentiality having regard to the subject matter and the circumstances of the communications." It says that while there have been some public announcements about the deliberative process, it remains ongoing. The Hospital also says that it has been mindful of the "inaccurate and often sensationalist commentary" that has been associated with the matter and is concerned that access to the records would impair future decisions about an important project. It says, thus, that "the case for non-disclosure outweighs the case for disclosure from the perspective of the public interest." 

Analysis

I accept that some of the withheld information relates to a deliberative process. I find that section 29(1)(a) applies. 

In so far as section 29(1)(b) is concerned, as already outlined I would expect the public body to be in a position to identify a specific harm to the public interest flowing from release and to explain how that harm might arise. 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. Any arguments against release under section 29 should be substantiated and supported by the facts of the case.

I accept that a deliberative process is still ongoing. However, the fact that a deliberative process exists and is ongoing does not, of itself, mean that the exemption automatically applies. While I believe that FOI bodies are entitled to appropriate time and space to consider all matters relevant to a deliberative process, this does not mean, of itself, that it is contrary to the public interest to refuse access to all information in any way relevant to the process. As the then Commissioner said in Case 98127, if the purpose of the exemption was to protect matter relating to the deliberative process until that process had been completed, it would have been a simple matter for the Oireachtas to have enacted a specific provision along these lines.

Neither does past or possible future negative media coverage mean that disclosure of the records is contrary to the public interest.  

The Hospital's submission does not point to the actual content of the records. At least some of that content appears to be concerned with parts of the deliberative process that have concluded. The Hospital has not explained how disclosure of such details, or indeed details relating to any deliberations that have yet to conclude, might impact on any ongoing or future deliberations. I take the view that it is not sufficient in this case for the Hospital to merely assert that the release of the records at issue would impair the integrity and viability of the decision making process without explaining how this harm might arise. 

In the context of the public interest test at section 36, the Hospital recites the provisions of section 11(7)(b) of the FOI Act, which provides that "[n]othing in this section shall be construed as applying the right of access to an exempt record ... where the exemption operates by virtue of the exercise of a discretion that requires the weighing of the public interest, if the factors in favour of refusal outweigh those in favour of release." While the Hospital appears to consider this recital to be sufficient to justify the refusal of records in the public interest (again, in the context of another exemption), I see section 11(7)(b) as reflecting the requirements of section 22(12)(b), which as noted earlier was clearly drawn to the Hospital's attention.

In other words, I consider that section 11(7)(b) requires the Hospital to explain why it would be contrary to the public interest to grant access to the records. I do not consider it to have justified its position that it is contrary to the public interest to grant access to the details that concern the deliberative process and I find that section 29 does not apply to those details. For the sake of completeness, I have no reason to consider that the grant of access to the records could result in the requester becoming aware of a significant decision that an FOI body proposes to make (a specific consideration required by section 29(1)(b)). 

Sections 30(1)(a), (b) and (c) (functions and negotiations of an FOI body)

Section 30(1)(a) provides that a request may be refused if granting it could, in the opinion of the head of the FOI body, 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. It envisages two potential types of "prejudice" or harm: (i) to the "effectiveness" of the tests, etc (i.e. the ability of the test, etc to lead to a result of some kind) or (ii) to the procedures or methods employed for the conduct of such tests, etc. Where an FOI body relies on section 30(1)(a), it should identify the potential harm that might arise from disclosure, show how the "prejudice" or harm might be caused, and consider the reasonableness of any expectation that the harm will occur.  

Section 30(1)(b) of the FOI Act provides for the refusal to grant access to a record 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). The Commissioner expects an FOI body relying on section 30(1)(b) to identify the potential harm to the performance by an FOI body of any of its functions relating to management that might arise from disclosure. Having identified that harm, it must consider the reasonableness of any expectation that the harm will occur, which must be of a "significant, adverse" nature (rather than, say, the "prejudice" standard contained in other FOI Act provisions). The FOI body should then explain how release of the particular record(s) could reasonably be expected to result in this significant adverse effect. 

Section 30(1)(c) of the FOI Act provides for the refusal to grant access to a record if access to the record concerned could, in the opinion of the head, 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. This exemption does not contain a harm test, but the level of harm that may result from release of the record may be relevant to the consideration of the public interest test at section 30(2). 

Section 30(2) provides that section 30(1) shall not apply where the public interest would, on balance, be better served by granting than by refusing to grant access to the requested record. 

The Hospital's arguments

The Hospital says that disclosure of the records would have an adverse effect on both it and the SVHG in performing their functions in relation to management. It says that the records would disclose their plans regarding current and future negotiations. It says that the grant of access would have a significant adverse effect on strategic planning, operational matters and HR/industrial relations across the Group as well as ongoing legal proceedings. The submission does not refer to any consideration given to the public interest test at section 30(2). 

I do not consider the Hospital to have justified its refusal of the records under section 30(1). It has made various assertions as to the harms it envisages arising from the grant of access. None of these harms seem relevant to section 30(1)(a). In any event, it has not explained how the harms could result from the disclosure of the particular information. Neither has it provided information to enable me to consider whether its expectations of those harms are reasonable in the circumstances. I find that sections 30(1)(a), (b) and (c) do not apply. 

Section 31(1)(a) - legal professional privilege

Some information in record 5 discloses the nature of legal advice sought. Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. It does not require the consideration of the public interest. Legal professional privilege enables the client to maintain the confidentiality of two types of communication, one of which is confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice. I find the three sentences to be exempt under section 31(1)(a), which are described more fully in the Appendix to my decision. 

Section 35(1)(b) - duty of confidence

Information concerning Third Party A
It is the Hospital's position that certain information given to it by Third Party A, having regard to the relationship between them, was given on the strict expectation of confidentiality. It says that the grant of access would breach a duty of confidence that it and the SVHG owes to Third Party A. It did not elaborate on this argument. Its submission refers generally to section 35. 

Section 35(1)(b) is the most potentially relevant exemption provision. It requires the refusal of access to a record where its disclosure would constitute a breach of a duty of confidence. However, section 35(2) must also be considered. This provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director or staff member 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 staff of an FOI body or of such a service provider." 

Third Party A is not an FOI body or a service provider in the context of the information at issue. It is therefore possible for the Hospital to owe it a duty of confidence in respect of the information concerned. 

This Office's Investigator consulted with Third Party A on 9 May 2018. She referred it to the provisions of sections 35, 36, and 37 and related material and, in particular, said that if it did not consent to the grant of access, it should specifically explain its reasons for objecting to release in the context of those exemption provisions. Third Party A's reply, following receipt of copies of records from the Hospital, says only that it agrees with the Hospital's submission. 
I note that one of the records refers to the confidentiality of a discussion on certain matters at a particular point in time. Details concerning the matter may have since come into the public domain. In any event, neither the Hospital nor Third Party A have explained why they consider any of the information in the records, having regard to the relationship between them or other circumstances, to be subject to a duty of confidence. I find that section 35(1)(b) does not apply.

Information concerning Third Party B
When asked for third party contact details, the Hospital said that certain information in the records is the subject of a non-disclosure agreement (NDA) between it and Third Party B. It made no claim under section 35 regarding the details concerned. 

The Investigator consulted with Third Party B on 9 May 2018. Third Party B said in a telephone message that it had no objection to disclosure of information about it. The Investigator replied to Third Party B saying that she was taking it (i) that it did not object to access being granted to the relevant details, and (ii) that it did not consider them to be covered by the NDA. She also said that unless she heard further within the timeframe set out, the Commissioner's review would proceed on the basis that disclosure of the relevant details about Third Party B will not disclose information subject to a duty of confidence for the purposes of section 35 of the FOI Act (or, for the sake of completeness, commercially sensitive information for the purposes of section 36 of the FOI Act or personal information for the purposes of section 37 of the FOI Act). She received no further contact from Third Party B. I have no reason to find that section 35(1)(b) applies to any information regarding Third Party B. 

Section 36 - commercially sensitive information

Section 36(1)(b) is a mandatory exemption that must be applied to certain types of information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or 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. 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 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. 

In the High Court case of Westwood Club v The Information Commissioner [2014] IEHC 375 Cross J. held that it is 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. 

Under section 36(1)(c), 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 conduct and the outcome of negotiations are separate matters. 

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 person 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. 

The Hospital's arguments - information relating to ongoing negotiations

The Hospital refers to a matter that it says is subject to continued discussion and negotiation. It claims that section 36(1)(b) applies to information concerning the matter, on the basis that its disclosure would prejudice future negotiations of the Hospital and the SVHG. It also refers to a related process that it says the SVHG is currently implementing. It refers to "progress reports" that it considers should be withheld because discussions between the Hospital and another named body are ongoing. It does not describe the subject matter of the discussions, but says that disclosure of the relevant information would be detrimental to concluding them. In the context of these particular arguments, it recites the provisions of section 11(7) regarding the public interest test. 

While it seems to me that section 36(1)(c) may have more relevance to the arguments than section 36(1)(b), the information concerned is that which I have already considered above under sections 29 and 30. As is evident from my analysis of those provisions, the Hospital has not explained how the harms that it envisages could arise from the grant of access to the particular records. It is not clear whether the ongoing discussions to which the "progress reports" are relevant and work concerning the implementation of a process are separate to other ongoing deliberations. In any event, the fact that such matters may be ongoing does not mean that the public interest weighs in favour of refusing the relevant details. I find that neither section 36(1)(b) nor 36(1)(c) apply to the relevant information. 

The Hospital's arguments - information of a commercial nature

The Hospital also relies on sections 36(1)(b) and (c) regarding various matters referred to in the records the disclosure of which it says would, in a competitive environment, place it at a "serious commercial disadvantage" and "prejudice the outcome of future contractual negotiations". It says that while openness, accountability and transparency are important public interest considerations in relation to this information, it does not consider them to weigh in favour of release, because "to do so will confer a real and significant commercial disadvantage upon the organisation". 

In general terms, section 36 enables the protection of third party commercially sensitive information. However, previous decisions from this Office have accepted that the provision can also be applied to information concerning an FOI body's financial or other interests. While it is possible for section 36(1)(b) or (c) to apply to records concerning the Hospital's interests, section 22(12)(b) of the FOI Act places the onus on the Hospital to justify its application of the provisions. 

It is clear from the earlier parts of this decision that it is not enough for the Hospital to say that disclosure of information would result in various harms without an explanation of how those harms would arise. Neither is it sufficient to simply recite section 11(7) without explaining why the public interest factors in favour of withholding a record outweigh those in favour of the grant of access. 

I find that section 36(1)(b) and (c) do not apply to the relevant information on the basis of the Hospital's arguments. However, some of the information referred to by the Hospital (contained in records 4 and 4) concerns a third party (Third Party C), with which this Office consulted. I will deal with that information, and Third Party C's arguments, separately. At this point, I should make it clear that I have no reason to find section 36 to apply to any information regarding Third Party B. 

Information concerning Third Party C

Opportunity to make submissions
On 9 May 2018, the Investigator gave Third Party C a general description of the records and invited submissions. She said that she could not provide copies of the records or a more detailed description, and advised it to address any queries to the Hospital. She subsequently granted its request for further time to make a submission.

There followed various exchanges between this Office and the Hospital and Third Party C which I will not detail here. These revolved around whether the Hospital ought to make the records available to the third party. The Hospital said that it had contacted various third parties including Third Party C, "some on multiple occasions". It said that it had given it the context and an explanation of its specific mention in the minutes under review and that "[t]he fact that a third party has now engaged their own legal representation is a matter for them." While I am puzzled by the significance of the final comment, I take the view that it is not this Office's role to persuade an FOI body to give copies of records to a third party for the purpose of making submissions. There are instances when it is simply inappropriate for an FOI body to give a third party copies of its records and the body is entitled to deal with such requests as it sees fit. 

I consider that this Office gave the Third Party C a reasonable opportunity to make its arguments, which it has done. 

Arguments 
Third Party C reiterates the difficulty in making a submission without sight of the relevant information. It says that the grant of access in such circumstances would violate its rights to fair procedures and natural justice, and accordingly that access should be refused. This is not a basis on which I can direct that a record be withheld. It is also worth highlighting that, as outlined in the Investigator's initial email to Third Party C, third parties have no right of veto over the grant of access to records under FOI. 

Third Party C also claims that sections 36(1)(b) and (c) apply. It says it believes that the minutes may touch on or concern various matters that it describes. It says that the grant of access to confidential information about its business model and financial and proprietary matters will reduce its sales and business opportunities. It says that the grant of access to such details will give its competitors an unfair advantage in future tendering competitions or sales situations as well as product development, and diminish any competitive advantage it enjoys. It also says that access to other information will jeopardise its negotiation position in respect of current and future customers in Ireland and elsewhere, by giving an unfair advantage to both customers in direct negotiations with it and to its competitors an advantage in any competitive tenders or sales situations.  

In relation to the public interest, it correctly notes that the Commissioner has in other cases acknowledged there to be a legitimate interest in persons being able to conduct commercial transactions with FOI bodies without fear of suffering commercially as a result. It argues that in the present circumstances the public interest would be best served by either the documents being withheld in full or with the information about Third Party C being redacted. 

Analysis
Section 25(3) prevents me from describing the relevant details to any extent but I am satisfied that they do not contain much of the information described by Third Party C, other than general details of the goods acquired, the overall cost and the payment schedule. Some details also generally concern the third party's business plans and disclose how it interacted with the Hospital in relation to the transaction concerned. 

I find that the relevant information is exempt under section 36(1)(b) on the basis that the grant of access "could prejudice the competitive position" of Third Party C in the conduct of its business, by giving its competitors an insight into its operations that it would not otherwise have had (the grant of access to records under FOI is accepted as generally equivalent to disclosure to the world at large). That said, I do not consider it appropriate to find section 36(1)(b) to apply to records 2 and 4 in full simply because they contain some such exempt details. 

I do not consider any of the exceptions to section 36(1), as provided for in section 36(2), to apply in this case. Section 36(3), however, provides that a record to which section 36(1) applies may be granted if the public interest would, on balance, be better served by granting than refusing to grant the request. 

There is a general public interest in ensuring openness in, and accountability for, the actions of an FOI body generally. 

There is also a significant weight to the public interest in ensuring openness in, and accountability for the use of public monies and resources. The records indicate that the purchase may not have been fully funded by public monies, and a recent article available on the internet also says that public monies were not used to purchase them. In any event, the records do not specify the exact cost (if any) to the public purse for the purchase. I am not satisfied that the public interest in ensuring openness and accountability for the use of public monies would be furthered by the grant of access to the cost of the goods or the payment schedule.

On the other hand, and as argued by the third party, there is a legitimate interest in persons being able to conduct commercial transactions with FOI bodies without fear of suffering commercially as a result. I consider that the public interest in refusing the relevant information is entitled to significant weight. 

I find that, on balance, the public interest would be better served by the refusal of access to the majority of the details concerning the goods supplied by Third Party C. Having regard also to section 18, and the information available on the internet about the Hospital's use of the relevant goods, I direct that access be granted to a very small amount of the relevant information. The remaining exempt information is described in the Appendix to my decision. 

Section 37 - personal information

I have no reason to find section 37 to apply to any information regarding Third Party B. 

The Hospital claims that section 37 applies to personal information contained in the records. It describes these details generally, and says that they include names of third party individuals that are "not related" to the Hospital, and information concerning the recruitment, employment, and probation of named persons. 

I find that certain information in the records is personal information that is exempt under section 37(1) of the FOI Act, including information relating to the employment or employment history of various identifiable individuals and views and opinions about an identifiable individual. Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing personal information. The applicant has not argued that the exceptions to what may be considered to be the personal information of public servants (section 2 of the FOI Act) are relevant in this case, nor do I consider them to be. 

The exceptions to section 37(1) are contained in sections 37(2) and (5) of the FOI Act. Of these, only section 37(5)(a) has any possible relevance. 

I consider that the public interest in openness and accountability for the Hospital's operations would be further served by disclosure of various personal information that discloses the presence or otherwise of, or comments made by, board members and other information that concerns the board's work. I also consider that it would be served by disclosure of the names of those members of the media to whom the board decided it may speak about certain matters.

On the other hand, 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). It is also relevant that the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large. Having particular regard to the context of the details described in the previous paragraph, it seems to me that the grant of access to those details will result in only a minimal breach of the rights to privacy of the board members and the members of the media. I find that the public interest weighs in favour of granting access to this personal information, which is described in the Appendix to my decision. 

As far as the remaining personal information is concerned, I consider that the public interest in favour of the grant of access would be further served to only a minimal extent by its disclosure, and that access would result in a significant breach of the relevant third parties' rights to privacy. I find that the public interest weighs in favour of withholding this personal information, which is described in the Appendix to my decision.


Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Hospital's decision. 

I annul the Hospital's effective refusal of the briefing papers and I direct it to undertake a fresh decision making process in respect of them. It is open to the Hospital to contact the applicant to establish that he wishes it to proceed with this fresh decision. 

I find section 31(1)(a) to apply to part of one record. I annul the Hospital's reliance on sections 29, 30(1)(a), 30(1)(b) and (c) and 35. I find that sections 36(1)(b) and 37(1) apply to some information in the records and that the public interest warrants the grant of access of some of this information. Details of the material under scope and what I have found to be exempt are set out in the attached Appendix. 

I annul the Hospital's refusal of the remaining information and direct that access be granted to it.

I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Hospital to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) 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 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.


Elizabeth Dolan
Senior Investigator