Case number: OIC-134217-S2K2W6

Whether the Department was justified in refusing access, under section 35(1)(a) of the FOI Act, to information in a record relating to a Private Members’ Bill introduced in 2017 (the Medical Practitioners (Amendment) Bill 2017 (no 42 of 2017))

24 January 2024

 

Background

In a request dated 19 May 2022, the applicant sought access to records held by the Department between 2017 and 2019 relating to a Private Members’ Bill introduced in 2017 (the Medical Practitioners (Amendment) Bill 2017 (no 42 of 2017)). In subsequent communications with the Department, the applicant agreed to exclude from the scope of his request records relating to meetings of the Government and records relating to the weekly internal circulation of a list of bills. On 15 June 2022, the Department extended the timeframe for consideration of the request under section 14(1)(a) of the FOI Act.

In a decision dated 15 July 2022, the Department part-granted the applicant’s request. Of the 16 records identified, six were released in full. The remaining records were released in part with certain information redacted under sections 35 and 37 of the FOI Act.  

On 19 July 2022, the applicant sought an internal review of the Department’s decision to withhold record 10 in part under sections 35 and 37 of the Act. The Department failed to issue an internal review decision within the statutory time-frame. On 9 December 2022, the applicant applied to this Office for a review on the basis of a deemed refusal, following which this Office instructed the Department to notify the applicant of its effective position on the matter. On 19 January 2023, the Department affirmed its original decision to withhold certain parts of record 10. On the same day, the applicant confirmed that he required a review by this Office of the Department’s decision to withhold information from the record in question.

During the course of the review, this Office sought information of relevance to the review from the Department. This request issued on 12 July 2023 and the Department was given one week to respond. Despite a number of subsequent emails issuing from the relevant Investigator, no substantive response was received. On 13 September 2023, I issued a notice to the Secretary General of the Department under section 45 of the FOI Act, requiring a response within seven days. Despite the issuance of a statutory notice, the Department did not provide a response within the relevant timeframe. The matter was ultimately escalated to the Commissioner and the additional information sought was provided on 7 December 2023.  

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 submissions received from both the Department and the applicant. I have also had regard to the contents of the record concerned.

 
Scope of Review

In correspondence with this Office, the applicant limited the scope of the review to the redactions made to record 10 under section 35 of the Act. He confirmed that he was not seeking a review of the decision to withhold information under section 37.

During the course of the review, this Office queried why the Department considered record 10 to fall within the scope of the applicant’s request, given its contents. In response, the Department said that the record comprises an exchange of emails between the Department and the Irish Pharmaceutical Healthcare Association (IPHA); a representative body whose members were likely to be impacted by the legislative proposals. It said that the body contacted the Department outlining its views and provided supporting information on a confidential basis. In light of the above submissions and the relatively broad nature of the applicant’s request, I accept that the relevant record comes within the scope of the request and this review.

The email thread at record 10 includes four attachments, copies of which were provided to this Office. Two attachments are referenced and linked on a page of the record that was released to the applicant. Two further attachments are referenced and linked on withheld pages. The Department said that the attachments were not released to the applicant as they were not considered to be “within the scope of the appeal”. The applicant’s original request specifically included correspondence from third parties. His request for an internal review referred to record 10 and he sought the full, un-redacted release of the record. He specifically referenced the withholding of pages 5-16 of the record and the Department’s reliance on section 35 of the FOI Act. I accept that the wording of the applicant’s request for internal review could be read to limit the scope of same to the withheld pages of the email correspondence. As such, I accept that attachments 1 and 2, which comprise IPHA membership lists, could be considered outside the scope of the review as the applicant would have been aware of their existence from the redacted record he received and he made no mention of them in his application for internal review. However, I do not accept that attachments 3 and 4, which the applicant was most likely unaware of, are outside scope. Those attachments are referenced and linked in the pages of the record specifically referenced by the applicant in his request for an internal review. As such, I deem them to be inside scope and I will consider them further below.

As such, this review is concerned with whether the Department was justified in withholding, under section 35 of the FOI Act, certain information in record 10 and two related attachments.


Preliminary Matters

Before I address the substantive issues arising, I would like to comment on the Department’s processing of the original request and its subsequent engagements with this Office during the review. As evidenced above, both the applicant and this Office had to contend with significant delays caused by the Department’s handling of this case.

First, the Department wrongly extended the timeline for processing the request under section 14(1)(a) of the Act, in my view. That section provides for the extension of the four-week period specified in section 13 for consideration of a request by up to four additional weeks if the FOI body considers that the request relates to such number of records that compliance with the four-week period is not reasonably possible. I cannot understand how the Department could possibly argue that compliance with the four-week period for processing the request was not reasonably possible due to the number of records involved when only 16 records were identified as coming within the scope of the request.

Secondly, the Department failed to issue an internal review decision and the Department’s effective position was not issued within the timeline prescribed by this Office. We had to send a number of email reminders to the Department in order to progress the issuing of the effective position. As noted by the applicant, an internal review decision which should have been issued in August 2022 was not received until January 2023, eight months after the request was first made.

This Office also experienced further considerable delays in its dealings with the Department during the review. In particular, it is wholly unsatisfactory that a response to a statutory demand for information, addressed to the Department’s Secretary General, was not received within the timeframe provided and that this Office had to repeatedly contact the Department in respect of same.

In short, the Department’s processing of the applicant’s request and its subsequent engagements with this Office during the review fell well short of the required standards and were wholly unsatisfactory. While I fully accept that the Department has to make difficult decisions in terms of the allocation of scarce resources, as this Office has stated on many occasions, the administration of the FOI Act is a statutory function which should be afforded as much weight as any other such function. Delays of the nature experienced in this case serve to undermine the entire FOI process and are unacceptable. I expect the Department to have regard to my comments and to ensure that the FOI function is adequately resourced to ensure compliance with the relevant statutory time-frames set out in the Act.

 

Analysis and Findings

Relevant background information
As I have outlined above, the request in this case was for records relating to a private member’s Bill introduced in 2017. Record 2 that was released to the applicant is a copy of the second stage speech in the Dáil concerning the Bill wherein the objectives of the Bill are described as to provide transparency regarding any funding or supports to medical practitioners by either medical device suppliers or pharmaceutical companies. It indicates that the then Minister believed that the provisions of the Bill should extend to all healthcare professionals.

The information at issue
Record 10 is an email thread comprising an exchange of emails between the Department and the IPHA concerning an IPHA transparency initiative. The information redacted from record 10 is a copy of a thread of emails that the IPHA forwarded to the Department following a meeting between the parties, comprising emails exchanged between the IPHA and the Office of the Data Protection Commissioner (ODPC) concerning data protection matters relating to its transparency initiative. Attachments 3 and 4 are documents that concern the matters that were under discussion between the IPHA and the ODPC.


Section 35 – information obtained in confidence
The Department withheld the information at issue under section 35 of the FOI Act. It did not specify the relevant sub-section of the provision which it was relying on in its decision-making records. However, in submissions to this Office it specifically referenced section 35(1)(a). I note that the applicant also presumed that this was the relevant section at issue and made submissions in respect of same in his request for an internal review.

 Section 35 of the Act provides as follows:

(1) Subject to this section, a head shall refuse to grant an FOI request if—

 (a) the record concerned contains information given to an FOI body, in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or

(b) 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(1)(a)
For section 35(1)(a) to apply, it is necessary to show the following:

  • that the information was given to an FOI body in confidence,
  • that the information was given on the understanding that it would be treated by the FOI body as confidential,
  • that 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
  • that it is of importance to the body that such further similar information should continue to be given to it.

All four of these requirements must be satisfied in order for a record to be considered exempt from release under section 35(1)(a) of the Act. It is the circumstances in which information was imparted and received that is important in determining whether the first two requirements are met. In determining whether information was given in confidence, a number of factors may be relevant, including, for example;

  • the expectations of the person giving the information to the FOI body,
  • any assurances sought regarding the information,
  • the purpose for which the information was provided, and
  • any other action that the person giving the information to the FOI body may have taken with regard to the information e.g. whether s/he has provided copies to other parties and, if so, to whom and on what basis.

In his request for an internal review, the applicant noted that various other emails between the Department and the IPHA were released and said that he did not see how the withheld emails could be considered to have be given in confidence or on the understanding that they were confidential. In its submissions to this Office, the Department said that it is clear from a reading of record 10 that the withheld information was explicitly identified as sensitive. The released part of the record indicates that the IPHA (i) provided the Department with a copy of its email exchange with the ODPC for its information only and said it should not be forwarded, (ii) did not agree to the email exchange being provided as part of any Freedom of Information request, and (iii) deemed the information to be legally privileged. It said its understanding was that the IPHA provided supporting information on a confidential basis.

The fact that the Department decided to release certain email exchanges with the IPHA does not mean that no such emails can be regarded as confidential. It is clear that the IPHA believed it had provided the information at issue to the Department in confidence for its information only, particularly in circumstances where it believed the information to contain legally privileged information. It is also apparent from the Department’s submission that it deemed the IPHA’s claim of confidentiality to be sufficient for it to accept that the information was given to it in confidence and on the understanding that it would be treated by the Department as confidential. Having regard to the circumstances in which information was imparted and received in this case, I accept that the first two requirements for section 35(1)(a) to apply have been met.

In respect of the third and fourth requirements, the applicant questioned whether the release of emails which are “more than four years old, and which relate to specific proposed legislation which has been dead in the water for several years” could now be said to prejudice the supply of future information.

The Department’s position is that while the policy being discussed did not proceed at the time, it is still the stated policy direction of the Department and may well be reconsidered in the future at which point engagement with the IPHA on the matter would again be necessary. It outlined its view that releasing the record may prejudice the giving of further information by the IPHA. It noted that the information provided included legal advice that, if made public, would make it unlikely for such information to be provided again by that body, and possibly other bodies in similar circumstances.

Having regard to the nature of the information at issue, I am satisfied that the disclosure of the information would be likely to prejudice the giving to the Department of further similar information by the IPHA in the future. While section 25(3) precludes me from describing the information at issue in detail, I can say that while I accept that a representative body like the IPHA has an interest in engaging with the Department and advocating in respect of its positions, it seems to me that the information is of a type that the IPHA would not consider necessary to provide as part of a consultation on any future policy that might be pursued by the Department in respect of enhancing transparency of funding or supports for healthcare professionals. I accept that if the information at issue was disclosed, in circumstances where the IPHA specifically requested that it be treated as confidential, then the provision of further similar information to the Department by the IPHA would, indeed, be prejudiced.

I also accept that if the Department decided to pursue a similar policy direction at some stage in the future, it would consider it important to engage with the IPHA, and that it would be important to the Department that the IPHA would provide similar type information on the matter. While the information concerns data protection matters relating to the IPHA’s transparency initiative, it seems to me that having access to such information would be of benefit to the Department. In the circumstances, I am satisfied that all four requirements for section 35(1)(a) to apply are met in this case.

However, that is not the end of the matter. I will now go on to consider the other provisions of section 35.


Section 35(2)
Section 35(2) provides that subsection (1) shall not apply 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 the IPHA is not an FOI body, section 35(2) does not serve to disapply any records created by its staff. However, as a record is defined in the Act as including a copy or a part of a record and parts of record 10 comprise emails prepared by a member of the staff of the ODPC, I have considered whether section 35(2) might apply to those parts.

The ODPC is a partially included agency for the purposes of the FOI Act. Section 6(2)(a) of the FOI Act provides that an entity specified in Part 1 of Schedule 1 of the Act, shall, subject to the provisions of that Part, be a public body for the purposes of the Act. Part 1(f) of Schedule 1 provides that section 6 does not include a reference to the Data Protection Commissioner, or an officer of the Commissioner, in relation to a record (save as regards a record concerning the general administration of the Office of the Commissioner). In other words, the ODPC is regarded as an FOI body only in respect of records it holds that concern the general administration of that Office.

The emails at issue in this case do not concern the general administration of the ODPC. Rather, they concern the core functions of that Office. As such, I am satisfied that they cannot be regarded as records that were prepared by a member of the staff of an FOI body and that section 35(2) does not apply.

 

Section 35(3)
Section 35(3) provides that section 35(1)(a) does not apply where the FOI body considers that the public interest would, on balance, be better served by granting the FOI request. In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the FOI 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 strengthen the accountability and improve the quality of decision making 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”.

Both parties made submissions in respect of the public interest test. The applicant’s position is that there is a strong public interest in releasing the redacted record so that the public can gain a greater understanding of how special interest groups operate in Ireland and seek to influence policy and legislation, especially if that legislation was ultimately not passed. He argued that the fact that the legislation was not passed despite the agreement of civil servants in the Department and the HSE that it was necessary underscores the public interest in releasing records associated with the legislative initiative.

The Department noted the applicant’s position and also said it considered the passage of time since the records were created. It said the policy matter that is the subject of the request has not progressed to legislative stage yet and may still do so. It argued that the release of the records, specifically against the wishes of the creator, may prejudice the supply of information from an individual or other sources. It said that it was on this basis that it decided that it would not be in the public interest to release the record in question.

Section 35(1) is an express recognition of the fact that there is a public interest in ensuring the continued supply of confidential information to FOI bodies in circumstances where it is important that such information should continue to be received. On the other hand, there is a significant public interest in how third parties seek to influence Government policy and legislation. However, it is not apparent to me that the information at issue in this case falls into such a category of information. It seems to me that the information at issue was provided to the Department for information purposes to allow it to understand the nature and details of data protection matters relating to the IPHA’s transparency initiative. While that matter may well have been of relevance to the Department, it does not seem to me to comprise information whose disclosure would enhance public understanding of lobbying efforts by the IPHA in respect of the policy matters under consideration at the time. Indeed, I note that the records released contain some information, at a high level at least, on the position of the IPHA in respect of the then proposed Bill.

Having carefully considered the matter, I am satisfied that the public interest would, on balance, be better served by not prejudicing the future supply of similar such information. I find, therefore, that the public interest would, on balance, be better served by withholding the information at issue in this case.

In conclusion, therefore, I find that the Department was justified in refusing access to the information at issue under section 35(1)(a).

 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision. I find that the Department was justified in refusing access, under section 35(1)(a) of the FOI Act, to certain information contained in a record relating to a Private Members’ Bill introduced in 2017 (the Medical Practitioners (Amendment) Bill 2017 (no 42 of 2017)).

 

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.

 

Stephen Rafferty
Senior Investigator