Case number: 170310
On 28 February 2017, the applicant submitted an FOI request to the HSE for records created between 1 January 2015 and 31 December 2016 which contain the following information:
On 21 April 2017, the HSE refused the applicant's request on grounds that release of the records would constitute a contempt of court (section 31(1)(b) of the Act). On 15 May 2017, the applicant requested an internal review of the HSE's decision. On 24 May 2017, the HSE upheld its original decision, also relying on section 30(1)(c) as an additional ground for finding the records to be exempt from release. On 15 June 2017, the applicant applied to this Office for a review of the HSE’s decision.
During the course of the review the applicant and the HSE were invited to make submissions. In its submissions, the HSE stated that it had located eight files which contain records relevant to parts one to eight of the applicant’s request. The HSE stated that it does not hold records which are relevant to parts 9 and 10 of the applicant’s request. Following communications with this Office, the applicant confirmed in writing that he was willing to limit the scope of his request to records relevant to parts 1-8 of his request. The Department maintains that these records are exempt under sections 31(1)(b) and/or 30(1)(c) of the Act.
I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the records, to the submissions of the parties, and to the provisions of the FOI Act 2014.
Scope of the review
I note that the HSE appears to have extracted records from its system which contain the information sought. The scope of this review is confined to whether the HSE has justified its decision to withhold records containing the information sought at 1-8 of the applicant’s request on the basis that they are exempt under sections 31(1)(b) and/or 30(1)(c) of the FOI Act.
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.
Section 22(12)(b) of the FOI Act provides that where a decision to refuse a request is being reviewed by the Information Commissioner, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Thus, in this case, the onus is on the HSE to satisfy me that its decision is justified.
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.
Section 31(1)(b) – Contempt of Court
I have decided to consider the exemption at section 31(1)(b) before considering section 30(1)(c) because this mandatory exemption formed the main basis of the HSE’s submissions to this Office. Section 31(1)(b) of the FOI Act provides that a head shall refuse to grant a request if the record concerned:
“(b) is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court."
Breach of an undertaking given to the court (whether express or implied) is a contempt of court. Documents disclosed on discovery in the context of court proceedings are subject to an implied undertaking, given to the Court and to the other party by the party to whom the documents are produced, that the documents disclosed shall not be used otherwise than within and for the purpose of the action in which they were disclosed. In E.H. v. The Information Commissioner  2 I.R. 463 (the "EH judgment"), O'Neill J. stated:
"Breach of the implied undertaking given in respect of discovered documents is a contempt of court. Notwithstanding that the undertaking benefits solely the party making discovery, the undertaking is given to the court and like all undertakings given to a court, breach of it is a contempt of the court...Undertakings given to a court can only be discharged either in the case of the usual undertaking in relation to discovery by waiver of the party making discovery or otherwise by the express permission of the court itself."
In its submissions to this Office, the HSE states that the requested records relate to an on-going dispute involving the HSE which is currently the subject of a dispute resolution process. According to the HSE, both sides are currently making submissions which take into account various aspects of the private ambulance framework including cost and pricing factors. The HSE states that the dispute resolution process is overseen by the judge who examined the case. It states that, depending on how the dispute resolution process evolves, the requested records could be the subject of discovery orders in those proceedings. The HSE argues that the decision of the High Court in McKillen v Information Commissioner  IEHC 27 suggests that section 31(1)(b) of the FOI Act 2014 may be applicable even where an FOI request is made prior to an order for discovery having been made in respect of documents that are covered by the relevant FOI request. The HSE refers to the following portion of Noonan J’s judgment in the McKillencase:
"Disclosure of documents the subject of an order for discovery, whenever made, is a contempt of court. Section 22(1)(b) of the FOIA 1997, which is now Section 31(1)(b) of the FOIA is mandatory and in such circumstances, disclosure must be refused.”
The HSE states that its understanding of the McKillendecision is that the release of the records under FOI at any point, where such records would be releasable in discovery, would amount to a contempt of court.
In the McKillenjudgment Noonan J. expressly refers to “documents the subject of an order for discovery”. The records at issue in the McKillencase were the subject of an order for discovery. The HSE has not argued that the records at issue in this case have been the subject of an order for discovery and I have no evidence that any undertaking in respect of these records has been given to a court. During the course of the review, this Office referred the HSE to its Guidance Note on the application of section 31 of the Act and in particular to paragraph 3.2.5 of the Guidance Note which states as follows:
“The mere fact that at some future date a court may make an order or give directions regarding the production or release of a record does not mean that such a record is exempt under section 31(1)(b).”
The HSE noted that its interpretation of the caselaw in relation to section 31(1)(b) appears to conflict with the OIC Guidance Note. However, it continued to argue that its interpretation of the McKillendecision is correct. I do not accept the interpretation of the McKillen decision contended for by the HSE; neither do I accept that it would be a contempt of court to release records under Freedom of Information which may, at some future date, be the subject of an order for discovery. I am not satisfied that the HSE has demonstrated that the requested records are exempt under section 31(1)(b) of the Act and I find accordingly.
Section 30(1)(c) - Negotiations carried on by public bodies
Section 30(1) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to-
(c) 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.
Section 30(1)(c) applies where the granting of access can reasonably be expected to disclose certain information. The wording of section 30(1)(c) extends to negotiations carried on by an FOI body other than the body making the FOI decision. The exemption is subject to a 'public interest override' i.e. even where the requirements of subsection (1) have been met, the exemption does not apply where the public interest would, on balance, be better served by granting access than by refusing to grant the request.
In its submissions to this Office, the HSE argues that release of the records would disclose information that could be used in negotiations and would give unfair advantage to the requesting party should this information be released. It states that the information sought relates to the purchasing costs of vehicles and equipment and running costs for same. It argues that if this information was made public, it potentially gives parties in a tender process an advantage in making tender submissions and that could be the case for any ensuing tender process of a similar kind. The HSE states that there is currently a tender process that is ongoing and even when this process is over, it would still classify the requested information as commercially sensitive. It argues that it is not in the public interest to release this information to one individual and it argues that if this information was released to the applicant it could be used in an advantageous way over others in any future tender process regarding the Private Ambulance Framework.
Section 30(1)(c) is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of the Government or an FOI body. This exemption does not contain a harm test unlike section 30(1)(a) and 30(1)(b). It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions. The Oxford English Dictionary defines the verb 'negotiate' as to "hold communication (with another) for the purpose of arranging some matter by mutual agreement; to discuss a matter with a view to some settlement or compromise." An FOI body relying on section 30(1)(c) should identify the relevant negotiations at issue. Relevant factors in considering whether there is a negotiation include whether the FOI body was trying to reach some compromise or some mutual agreement.
In a tender process parties are invited to submit a bid for the provision of goods or services. An evaluation team examines the tenders and awards the contract on the basis of the tender submitted. It seems to me, that a tender process does not involve discussions with a view to some settlement or compromise. Even if I were to accept that such a process constitutes a negotiation, the HSE must show that release of the records could reasonably be expected to disclose positions taken for the purpose of such a negotiation. The records contain information in relation to purchasing costs of vehicles and equipment and the running costs for same. The Commissioner distinguishes between disclosing the existence of a fact and disclosing a position or plan used for the purpose of negotiations. In case 98078 (Mr. Martin Wall, The Sunday Tribune and the Department of Health and Children - available on this Office’s website at www.oic.ie) the Commissioner found that information relating to actual expenditure, budget variances, steps already taken to keep within budget etc. was not information relating to positions under section 30(1)(c). I am satisfied that information in relation to purchasing and running cost of vehicles is not information relating to positions taken for the purposes of negotiations. I find that the records are not exempt under section 30(1)(c). In light of this finding, it is not necessary to consider section 30(2) and the public interest balancing test.
Finally, the HSE referred to information contained in the records as "commercially sensitive", however it did not rely on section 36 of the Act in its original or internal review decisions nor has it relied on section 36 of the Act in its submissions to this Office. For completeness, I should say that, having regard to the limited type of information on vehicle costs evident from the records and the HSE submissions, I am not satisfied that the section 36(1) exemptions are justified. As explained earlier, the Act places the onus on the HSE to satisfy me that the records are exempt and it has not done so in this instance.
Having carried out a review under section 22(2) of the FOI Act 2014, I hereby annul the HSE's decision and I direct it to release the records relevant to parts 1-8 of the applicant's request to the applicant.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date on which notice of the decision was given to the person bringing the appeal.