Case number: OIC-139258-J9J9N4

Whether the HSE was justified, under sections 36(1) of the FOI Act, in refusing access to parts of a tender document relating to the provision of care by a private company to the applicant’s infant son

 

30 January 2024

 

Background

Due to his complex medical needs, the applicant’s infant son required home nursing care. In order to find a suitable provider for this care, the HSE ran a ‘mini-competition’, inviting tender submissions from service providers who had already been appointed to the HSE’s relevant Dynamic Purchasing System. A private healthcare provider (“the Company”) submitted a tender and was awarded the contract.

In a request dated 13 January 2023, the applicant sought access to various specified records relating to his son and his care. Specifically, he requested:

  • Full details of all Paediatric Community Assessment Tool (P-CAT) assessments,
  • Full details of all contracts with any third-party providers,
  • Details of any service level agreements associated with such contracts,
  • Details of any other governance applicable to the contract between the HSE and the Company,
  • Any items which document the decision to award the contract to the Company.

In a decision dated 13 February 2023, the HSE part-granted the request. It identified 96 pages of records, which comprised a business case for the care required, the P-CAT assessment, and the tender document submitted by the Company. It released some of the records, and refused the remainder under section 36(1)(b) of the FOI Act. The applicant sought an internal review of this decision on 22 February 2023. Among other things, he said that the P-CAT assessments contained no commercially sensitive information and related only to his son’s medical needs and that section 36 should not have been applied to any part of that record. In relation to contracts with the Company, he accepted that the records might contain commercially sensitive information, however he said that as the contract was subject to a number of serious specified complaints, the public interest in release outweighed any commercial sensitivity.

On 15 March 2023, the HSE varied its original decision. It released the PCAT assessments in full and the business case with one redaction. However, it upheld its decision to refuse access to the tender document under section 36 and claimed that it was also exempt under section 29 of the FOI Act (deliberations of FOI bodies). By way of providing further general information, it pointed the applicant towards a publicly available generic template of a Service Level Agreement between the HSE and private providers of care for children with complex medical needs. On 16 June 2023, the applicant applied to this Office for a review of the HSE’s decision.

During the course of the review, the HSE released additional records to the applicant, including the first part of the tender document, which was prepared by the HSE and not the Company. For the remaining parts of the records that were refused, it cited section 37(1) as well as section 36(1)(a). It said that the reference to section 29 in the internal review decision was an error. Having received the additional records, the applicant confirmed with the Investigator that he wished the review to continue. He also provided a redacted copy of the tender document that was released to him by the Company further to a Subject Access Request (SAR).

The Company was notified of the review and invited to make submissions, which it did.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the HSE, by the applicant and by the Company. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The applicant queried why he was not provided with a copy of the relevant Service Level Agreement (SLA) between the Company and the HSE that he had requested. Following clarification of the matter with the HSE, it confirmed that, in the ordinary course of events, an SLA would have been signed between the relevant HSE Community Healthcare Organisation and the Company when it was contracted to provide home care services for the applicant's child. It said, however, that due to specific circumstances arising in this case, no such SLA was ever signed. It said that the Company is one of the service providers on the HSE's Home Care Package framework and, as such, it is obliged to comply with the conditions set out in the generic SLA that is used in cases where private home care is being provided to children with complex healthcare needs, a copy of which was provided to the applicant. In addition to the conditions set out in the generic SLA, it said that the Company was also required to adhere to what was set out in the tender document completed as part of the mini-competition. While the applicant remains dissatisfied with this situation, he accepts that no signed SLA exists that is specific to his child’s care, and there is no further role for this Office on this aspect of the request.

As I have indicated above, the applicant made a SAR to the Company and received a redacted copy of the tender document. Many of the pages withheld by the HSE were released to him by the Company. The applicant has agreed to omit these pages from the scope of the review, as he already has access to them. The applicant confirmed with the Investigator that he was not seeking personal information relating to staff of the Company, which was contained in CVs in the tender document, and the relevant pages containing these CVs have also been excluded from the scope of the review. Furthermore, he said that he was not interested in the first part of page 34 (recruitment process), page 51 in full, the organisational chart on page 80, or page 84 in full, and I have excluded these pages also.

This review is therefore concerned only with whether the HSE was justified, under section 36(1) of the FOI Act, in refusing access to the remaining parts of the tender document, namely; pages 33, 34 (in part), 35, 36, 37 (in part), 38, 52 (in part), 53, 67, 75, 76, 80 (in part), 81-83, 85-86 and 94-96. This numbering corresponds to the handwritten numbers on the bottom right of the records that were provided in hardcopy to this Office.

Preliminary Matters

In his application for review, the applicant set out his dissatisfaction with the care provided by the Company and said that a complaint had been made to the relevant Public Health team. He said that it had become clear that the Public Health team “had no intention of holding the agency to account and were consistently opaque on what behaviours were considered breaching the terms and conditions of the contract and declined to confirm if there were repercussions for an agency failing to adhere to the terms and conditions of the contract.” As noted above, he is also unhappy that a specific SLA was not signed between the Company and the HSE for the delivery of services for his son. The HSE in its internal review decision said that the release of the specific tender and contract records “would not result in any benefit to [the applicant] nor would it add to [his] understanding of the documents the subject of [his] appeal over and above the information as available within the generic tender document”.

It is important to note firstly that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Secondly, section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act. ​​

Analysis and Findings

Section 36

Section 36(1) provides a mandatory exemption for what is generally described as “commercially sensitive” information. There are certain situations where, although section 36(1) relates to the request, the request shall still be granted; these situations are specified in section 36(2). The exemption is subject to a public interest test, set out in section 36(3).

Section 36(1) provides that a request shall be refused if the record concerned contains:

  1. trade secrets of a person other than the requester,
  2. financial, commercial, scientific, 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/her profession or business, or
  3. information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.

Submissions from the applicant

In his application for review and subsequent submissions, the applicant argued that section 36 should not serve to prevent access being given to the records. In relation to section 36(1)(b), he said that as the contract has already been awarded and subsequently terminated, the HSE was in error to assume any further financial loss or gain could be assumed under the contract. He said that given the standardised nature of the tendering process and transparency afforded under the National Public Procurement Policy Framework, in which other agencies can view the tenders of competing agencies, it was highly unlikely that the Company’s competitive position could be prejudiced. He pointed to the HSE’s comment in the internal review decision that the provision of specific documents would not add to his understanding over and above what had been provided in the template generic documents. The applicant said that if this was the case, then the records could not possibly contain material that could expose the Company to material loss or gain, or prejudice its competitive position.

He went on to make a number of arguments as to why the public interest factors favouring release of the records outweighed those against release. He said that the HSE had not given adequate weighting to factors favouring release of the records, in particular the public interest in the quality of care, transparency, and accountability of agencies. He said that it had failed to take into account the unique circumstances of this case and the serious nature of the failings of the Company which gives added weight to the public interest factors favouring release. He noted that public funds had been spent which he described as a “misallocation of resources to an agency who failed to fulfil the hours allocated under a legally binding contract with the HSE and exposed a child under their care to significant risk of death”. He said that the HSE’s failure to acknowledge possible breaches of the Incident Management Framework 2020, National Policy Procurement Framework and several child welfare guidelines represented a conflict of interest. He said that release of the records would highlight the terms and conditions that the Company was due to adhere to, and would help confirm breaches of those conditions. He said it would show the basis of the contract with the Company and the HSE and whether the Company met the agreed standards, those standards being the basis of a legally binding contract with the HSE.

The applicant went on to say that he had made a written complaint to the Company in respect of an incident that occurred on 11 January 2023, and that while the HSE has said that the matter could be dealt with under the Company’s complaints procedures, he has heard nothing from the Company apart from a holding response received on 24 January 2023. He said that the HSE was incorrect to make assumptions about the ability or willingness of the Company to engage with its own complaints procedure, a procedure which would have been a necessity as part of the tender process. He said that the point of the FOI request was to try to establish how a Company “who have acted so irresponsibly in relation to the welfare of a child were awarded and permitted to retain a contract, without any recrimination from the awarding body, in the face of mounting evidence that they were unable to adequately and safely deliver the contract”.

The applicant also argued that section 36(2)(e) of the Act should be considered i.e. that disclosure of the information concerned was necessary in order to avoid a serious and imminent danger to the life or health of an individual or to the environment.

Submissions from the HSE

The HSE submitted that the records were exempt from release under section 36(1)(b). It said the tender document at issue contained “financial, organisational and business (commercial) specific information which informed HSE decisions in approving packages of care; this being the skillset and quantum of nursing and alignment of rota and care planning within a pricing matrix which is scored per procurement framework”. It said the content and configuration of provider applications is confidential to the tender process and protected the competitive integrity in a procurement area in which the HSE was unable to meet critical health care needs in the interest of specific children and families. It said information contained in the tender document was not generally made available to the public and the Company had not consented to its release. It said families were made aware of care plans, staffing and rota by way of specific pre-service commencement assessments and that the safety of the care package was monitored by the public health nurse (PHN).  

The HSE said that as the award of tenders for paediatric home care packages was based on a combined score of technical merit, care management proposals and cost, its position was that if the information provided by the Company in the tender document was released, there was a risk that competitors could adopt a similar approach for future tenders, which could give them an unfair advantage and result in financial loss for the Company.

The HSE said that the procurement framework and related outcome correspondence specifically protects the confidentiality of all providers with respect to the cost of care pricing. It said that outcome scores with commentary are disclosed to successful and unsuccessful tenderers as they pertain to technical merit and care management proposals but that monthly costs are specifically prohibited from disclosure between providers. It said that the confidentiality of the pricing information contained in the records under review was integral to the competitive process and its disclosure could inadvertently disadvantage the Company in future processes, beyond this specific contract. It said that sourcing appropriate nursing care for children with complex healthcare needs was an ongoing challenge for the HSE.

In terms of considering the public interest under section 36(3), the HSE said that it took into account the need for the Company not to be unduly impeded in the effective pursuit of its business, and the public interest in an FOI body being able to make informed decisions in the course of carrying out its functions and in being able to maintain the confidentiality of their deliberative processes in some circumstances, particularly where those deliberative processes are ongoing. It said that having reviewed the records, it was of the view that there were no exceptional circumstances in this case that would warrant the release of the records, and that the public interest was better served by refusal.

In relation to the applicant’s reference to section 36(2)(e) in his application for review by this Office, which provides that information falling within section 36(1) shall be released if “disclosure of the information concerned is necessary in order to avoid a serious and imminent danger to the life or health of an individual or to the environment”, the HSE said that an incident arose on 11 January 2023 which was notified to the HSE as per the procedure within the tender documentation. It said that no injury was noted to the service user and the matter was categorised as a clinical incident. The HSE said that the pathway to manage such concerns and follow-up includes escalation mechanisms which include a referral to the appropriate professional regulatory body.

Submissions from the Company

In a submission made by solicitors acting for it, the Company said that its sole submission was that the material sought was commercially sensitive and accordingly should not be released. It said that the tender pricing, roles and responsibilities, employee and contractor profiles, rosters, and costings contained in the documents were commercially sensitive and private and confidential. It said that disclosure could give an unfair advantage to other parties who provide services to the HSE. It said that “the information requested contains trade secrets, that disclosure could reasonably be expected to result in a material financial loss to [the Company] and its staff being the persons to whom the information relates and could prejudice [the Company’s] competitive position and could prejudice the conduct or outcome of contractual or other negotiations between [it] and the HSE on other contracts within the overall Tender Framework and the Mini Tender referred to”.

It said that in relation to section 36(1)(b), the relevant information was contained within records 33-77, 80-86 and 94-96. It said that “the material financial loss or gain which is expected by [the Company] is its pricing and staffing structures and rostering and personnel which are a key part of [its] commercial information and competitive advantage”. It said that “disclosure would be to the advantage of competitors and the market generally and to [its] disadvantage, and could be seized upon by competitors to underbid or to seek to attract its employees away from it or to use its rostering advantage to enable a competitor to imitate or undermine it”. It made no submissions on the public interest.

My analysis

Sections 36(1)(a) and (c)

While the Company, in its submissions, quoted sections 36(1)(a) and 36(1)(c) of the Act, it went no further in explaining why these sections might apply. It did not show how any of the information concerned falls within the meaning of a trade secret, and neither is it evident to me from an examination of the records that it does. It did not explain or show that contractual or other negotiations are in train or are reasonably foreseen which might be affected by release of the records or explain how such a release could prejudice the conduct or outcome of such negotiations, if they existed. Again, neither is this evident to me from an examination of the records and consideration of the various submissions. The Company made more substantive submissions on section 36(1)(b), and this appears to me to be its main position, which I have considered in detail below. I am not satisfied that it has been established that either section 36(1)(a) or 36(1)(c) applies to the records at issue.

Section 36(1)(b)

The harm test in the first part of section 36(1)(b) is whether disclosure of the information “could reasonably be expected to result in material financial loss or gain”. The Commissioner takes the view that the test to be applied in this regard is not concerned with the question of probabilities or possibilities, but with whether the decision maker’s expectation is reasonable. The nature of the harm envisaged and a basis for a claim that such harm could reasonably be expected to result from disclosure of the particular information in the record(s) at issue should be shown by an FOI body or a third party relying on this provision.

The harm test in the second part of 36(1)(b) is whether disclosure of the information “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 standard of proof necessary to meet this test is lower than the standard required to meet the test of "could reasonably be expected to" in the first part of section 36(1)(b). While the standard of proof to meet this test is reasonably low, this Office nonetheless takes the view that, in invoking the phrase "prejudice", the damage which could occur as a result of disclosure of the information must be specified with a reasonable degree of clarity.

In seeking to establish whether the requirements of section 36(1)(b) have been met, it is important to examine the specific contents of the records themselves and what they do and do not disclose. The records at issue here are all pages contained in a tender submitted by the Company to the HSE in the course of a mini competition for the provision of homecare services to the applicant’s child. The tender information was provided by the Company by entering it into a template Tender Response Document created by the HSE. The HSE, in the course of this review, released almost all of the pages in the record that it created and that formed part of the template. It also released the full year estimated cost of the contract, as included in the business case document. The Company released the detailed care plan and proposed rosters set out in the tender document, in response to the applicant’s SAR. The outstanding records under consideration in this review contain information relating to the capacity of the Company to deliver the contract (numbers of nurses and hours available), essential criteria for the nurses employed including training requirements, respective roles of individuals in delivering the services, the Company’s ‘care planning process’, how care is documented, escalation mechanisms, governance arrangements, procedures and best practice, paediatric clinical guidelines, audit and Key Performance Indicator list, and a breakdown of costs.

Having carefully considered the submissions from the HSE and the Company, it seems to me that the primary argument is that the release of this tender information could negatively impact on the Company in tendering for other similar work in future because it could reveal commercial, financial and other information about how it runs its business and delivers its services, as well as how it communicates this in tendering for such services, which could be advantageous to its competitors and consequently disadvantageous to the Company. The applicant argued that this cannot be the case when the contract with the Company has already concluded and it therefore could not incur further financial loss. While I accept that this is the case in relation to the specific contract for the delivery of services for the applicant’s child, the Company’s business is the delivery of homecare services and the HSE appears to frequently outsource and tender for such services. As such, while some of the information at issue may be case specific, much of it is more general information that would likely be included by the Company in other tenders being submitted for further work and shows how the Company presents itself, its internal structures, how it manages its services, and precise details of costings including hourly rates. Having regard to the relatively low standard of proof required to meet the harm test in the second limb of section 36(1)(b), and taking into account the specific information at issue and the fact that it is relatively recent and not apparently publicly available, I am satisfied that most of the records at issue contain information whose disclosure could prejudice the competitive position of the Company in the conduct of its business. However, I do not find that this applies to the majority of the information on pages 94 and 95 which, apart from the Cost Breakdown table, is information provided by the HSE in the template, or page 96 which is a signature page.

Section 36(2)

Section 36(2) provides for certain circumstances where the request shall be granted even if section 36(1) has been found to apply.  I am satisfied that none of the circumstances set out in sub sections (a) to (d) arise in this case.

Section 36(2)(e) provides that the request shall be granted if disclosure of the information concerned is necessary in order to avoid a serious and imminent danger to the life or health of an individual or to the environment. The applicant argued that section 36(2)(e) applied in this case and referred to an incident which occurred on 11 January 2023 when home care nursing services were being provided by the Company to his child and which he stated exposed his child to significant risk.

I note that the exception at section 36(2)(e) requires release of records where information contained within them is necessary to avoid a serious and imminent danger to the life or health of an individual (or to the environment). While I acknowledge the applicant’s description of the incident and its seriousness, and I note that while it is over a year now since the incident occurred and that the FOI request was made within a few days of it occurring, it is nonetheless not apparent to me that the records contain information which could, if released, either at the time of the original request or now, have prevented the incident from occurring. The Company are no longer providing services to the applicant’s child and I am not satisfied that release of the records is necessary to avoid a serious and imminent danger to his life or health, or indeed to anyone else’s, or to the environment. I find that section 36(2)(e) does not apply in this case.

Section 36(3)

Section 36(3) provides that section 36(1) does not apply to a case in which the FOI body considers that the public interest would, on balance, be better served by granting than refusing to grant the request.

The Company in this case made no arguments either way in relation to the public interest. The HSE set out the public factors it considered against release, including the public interest in ensuring that the Company concerned is not unduly impeded in the effective pursuit of its business. It also said there was a public interest in the HSE being able to make informed decisions in the course of carrying out its functions and in being able to maintain the confidentiality of its deliberative process in some circumstances, particularly where those deliberative processes relate to ongoing negotiations. It seems to me that this second public interest identified is concerned with the protection of the HSE’s deliberative processes and I note that the HSE indicated it was not relying on the relevant exemption which serves to protect such processes, namely section 29. The HSE also said that it had not identified any ‘exceptional circumstances’ which would warrant release of the records. I note that ‘exceptional circumstances’ is not the test required for the application of section 36(3). What is required is a balancing of the interests engaged.

The applicant set out the various public interest factors that he considered favoured release including ensuring the quality of care being provided, and transparency and accountability of agencies contracted to provide services to the HSE. He noted the expenditure of significant public funds and said that Company was unable to provide the nursing hours it had been contracted to provide. Furthermore, he referred to the incident which occurred on 11 January 2023 and his dissatisfaction with how the Company dealt with this. He also noted that no SLA was ever signed between the relevant HSE Community Health Area and the Company for the delivery of the services. I understand that the applicant wishes to access the records to better understand the terms and conditions under which the Company was contracted to provide services, and the implications of a potential breach of the contract.

In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, 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 inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”). In that case, 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”. 

Section 36(1)(b) is an express recognition of the fact that there is a public interest in private companies or individuals being able to do business with FOI bodies without harming their competitive position, their reputation or their ability to carry out their business or profession; this public interest was recognised by the HSE in its submissions. Indeed, in the Enet case referenced above, the Supreme Court found as follows:

“The exemption of certain records under s. 36(1) is established to protect commercially sensitive information and that must be seen as a protection of the commercial interests of public bodies. The sub-section 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.”

As a general principle, I do not believe that the FOI Act was designed as a means by which the operations of private enterprises were to be opened up to scrutiny. For those records to which I have found section 36(1)(b) to apply, I have accepted that their release could prejudice the Company’s competitive position. It seems to me that the degree of potential harm is something to be considered when weighing up this public interest factor, and this will be dependent on the specific information contained in each individual record and the extent to which it could be used by competitors or others to the detriment of the Company. While some information may be very case specific or be time-bound, other more general information might have broader applicability.

It seems to me that the applicant’s arguments are reflective of a public interest in ensuring that when homecare services are contracted out by the HSE to private providers, such services are provided appropriately and safely, and that there are appropriate mechanisms in place to hold such providers to account if things go wrong. I note that in this case, in the absence of a signed SLA, the HSE confirmed that the delivery of the contract was governed by the conditions set out in the generic SLA and the tender document itself.

It seems to me that it is relevant to consider established public policy in relation to public procurement and tender competitions in this case. The Government’s National Public Procurement Policy Framework, available on the website of the Office of Government Procurement (OGP), sets out the overarching policy framework for public procurement in Ireland, including the procurement procedures to be followed by government departments and state bodies under national and EU rules. The OGP has produced guidelines to promote best practices and consistency in the application of public procurement rules in relation to the purchase of goods and services. These are available at https://www.gov.ie/en/publication/c23f5-public-procurement-guidelines-for-goods-and-services  The Guidelines refer to the FOI Act and provide as follows:

“Bodies subject to Freedom of Information Legislation are required to provide the following details in relation to public procurement under the Model Publication Scheme, published by the Department of Public Expenditure and Reform in July 2016:

  • procurement policies
  • a link to all current tender competitions on the eTenders website
  • public contracts awarded including contract type, contractor, value, award date, duration and brief description (tabular format) over €25,000 (exclusive of VAT) for both ICT and other contracts”

In my view, the OGP Guidelines and the FOI Publication Scheme reflect a Government policy of ensuring a certain degree of transparency in relation to contracts awarded. While no tender related records are subject to release or exemption as a class, it is my view that there is a recognised public interest in the disclosure of certain elements of a successful tender, after such time as a contract has been awarded. This does not, however, mean that there is a public interest in releasing tender documents in their entirety, even those of a successful tenderer. When it comes to pricing information, the disclosure of the amount paid by a public body for a particular service would appear to be a significant aid to ensuring effective oversight of public expenditure, to ensuring the public obtains value for money, to preventing fraud and corruption, and to preventing the waste or misuse of public funds. I do not consider, however, that this means that all pricing information should necessarily be released and it might be the case that the release of the detailed pricing structure of a tender could, indeed, cause more significant harms to service providers and to the tendering process itself. 

Having considered all of the above, and taking into account the specific information contained within each of the individual records at issue, I find that the public interest would, on balance, be better served by granting than by refusing access to the following records: pages 33, 36, 37 (apart from first bullet point), 38 (apart from name of individual at top of page), 52 (apart from the names of individuals and paragraphs 2 and 3 which contain CV type information of an individual), 53, 76 and 86 (last paragraph only, ‘maintenance of competencies to deliver safe and effective care’), 94 and 95 (all items in the left hand column of the Cost Breakdown table across the two pages, and the total overall cost per month at the bottom of page 94). These records contain information relating to the capacity of the Company to deliver the contract (numbers of nurses and hours available), relevant experience, respective roles, mandatory and case specific training for staff who will deliver the contract, escalation mechanisms, maintenance of competencies, and high level cost information.  For these records, I am satisfied that the information is quite case specific and less likely to lend itself to undermining the Company’s competitive position should a competitor access it. I find that the degree of potential harm that the Company could suffer by virtue of the release of these records is relatively low and is outweighed, in my view, by the public interest in service users being aware of the level of service committed to, and the quality control mechanisms put in place for the delivery of services to a vulnerable child, as well as the public interest in value for money being achieved by a public body in awarding such a contract to a private company.

For the remaining records, I find that the public interest would, on balance, be better served by refusing access. These are pages 34, 35, 67, 75, 80, 81, 82, 83, 85, 86 (general audit list), 94 (itemised costs per month only), and 95 (hourly rates only). These records contain information relating to recruitment criteria, general approach to training and training providers used, ‘care planning process’, documentation of care, governance arrangements and internal structures/procedures/guidelines, internal audit, and detailed cost breakdown. In respect of these records, I find that the information is of a more generalised nature and more likely to be used by the Company in tendering for other services, and thus release could potentially be more prejudicial to its competitive position. In relation to the detailed breakdown of pricing information including hourly rates, I accept that release of this information could be of benefit to the Company’s competitors. With respect to record 67 which describes the Company’s care planning process, essentially a blueprint for how the Company generally develops, delivers and reviews care plans, I note that the specific care plan for the applicant’s child has already been released to the applicant by the Company further to the SAR. It seems to me that the additional understanding that would be achieved by the release of these records in terms of demonstrating whether value for money was achieved, and the level and quality of services committed to, is minimal, and that the public interest in such a release is outweighed by the public interest in the Company being able to conduct its business with the HSE without unduly harming its competitive position.

Page 96

As I have explained above, page 96 is the signature page of the tender document submitted by the Company. Section 37(1) of the Act is a mandatory exemption that provides for the protection of third party personal information. While I am satisfied that the name of the signatory on behalf of the company is not exempt under section 37(1) due to the publication of the individual’s identity on the Company’s website, I find that the exemption applies to the signature itself and that none of the other provisions of section 37 serve to disapply that exemption.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE’s decision. While I find it was justified in refusing access, under section 36(1)(b) to some of the records within the scope of the review, I find that the public interest would, on balance, be better served by releasing the other records.

For the avoidance of doubt, I direct release of the following:

  • Page 33
  • Page 36
  • Page 37 (apart from first bullet point)
  • Page 38 (apart from name of individual at top of page)
  • Page 52 (apart from individual names, and CV type information in second and third paragraphs)
  • Page 53
  • Page 76
  • Page 86 (last paragraph only, ‘maintenance of competencies to deliver safe and effective care’)
  • Page 94 (apart from itemised costs per month, but total overall cost per month to be released)
  • Page 95 (apart from hourly rates)
  • Page 96 (apart from the signature of the Company representative)

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.

Stephen Rafferty
Senior Investigator