Case number: OIC-111267-V3Y7X3
15 March 2022
On 18 February 2021, I annulled a decision of the HSE to refuse, under section 15(1)(c) of the FOI Act, three separate requests made by the applicant for records relating to a named nursing home in County Louth and I directed it to consider the requests afresh. One of those requests was made on 3 September 2020, wherein the applicant sought access to all correspondence including letters, emails, details of phone calls, video-conference calls and reports, addressed to or involving a named HSE staff member, relating to the nursing home, to include correspondence from four named parties from 27 March 2020 to 15 May 2020.
The HSE subsequently decided to part-grant the request, but refused access to the vast majority of the records at issue under sections 30(1)(b) and 37(1) of the Act. The applicant sought an internal review of that decision.
In its Internal Review decision, the HSE varied its decision by releasing certain additional records, and by citing section 36(1) of the Act as an additional basis for withholding certain other records sought. Of the 141 records identified by the HSE as falling within the scope of the request, the HSE released six records in full to the applicant, partially granted access to 43 records (with certain material redacted), and withheld in full access to 92 records. On 5 August 2021, the applicant sought a review by this Office of the HSE’s decision in respect of her request.
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, and to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
In the schedule of records provided by the HSE, it did not number the records at issue. As such, in order to simply references to the relevant records in this decision, I have adopted a numbering system whereby the first record on the Schedule (comprising pages 1-4 of the total number of records) will be referred to as ‘Record 1’; the second record (comprising pages 5-8 of the records) will be referred to as “Record 2”, and so on.
I note that the record comprising pages 81-91 is outside the scope of the request and therefore, although it has been included in the schedule of records provided by the HSE, I have not considered it in the course of this review. Nor have I allocated it a record number in the numbering system outlined above. As such, while Record 37 comprises pages 77-80, Record 38 comprises pages 92-94.
As Records 21, 33, 41, 85, 122, and 134 have been released in full, they do not form part of this review. I have also excluded records 15, 17, 47, 68, and 77 from the scope of the review as they are duplicates of other numbered records. Accordingly, this review is concerned with whether the HSE was justified, under sections 30(1)(b), 36(1) and 37(1) of the Act, in refusing access, in whole or in part, to the remaining records included in the schedule of records.
It is also important to note that a review by this Office is considered to be “de novo”, which means that it is based on the circumstances and the law as they pertain at the time of the decision. Furthermore, section 22(12)(b) of the 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 relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the HSE of satisfying this Office that its decision to refuse access to certain records, in whole or in part, was justified.
The HSE cited section 30(1)(b) of the Act as a basis for withholding access in full to Records 6, 8, 10-12, 18, 29, 31-32, 36-38, 40, 42-43, 45, 46, 48, 52-62, 64, 66, 69, 71-72, 74-75, 78-80, 82-84, 86-87, 89-96, 98-100, 102-105, 108, 110-116, 118-119, 123-133, and 135-141, and as a basis for partially withholding access to Records 7, 30, 49, 65, 67, and 106-107. Section 30(1)(b) provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could 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).
An FOI body seeking to rely on section 30(1)(b) must show how the harm anticipated could reasonably be expected to result from the release of the records at issue. In particular, the body should identify the potential harm to the performance by an FOI body of any of its functions relating to management that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The body should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged.
A claim for exemption under section 30(1)(b) must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. When invoking section 30(1)(b), the FOI body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Establishing "significant, adverse effect" requires stronger evidence of damage than, for example, "prejudice" (as per section 30(1)(a) of the Act). In other words, not only must the harm be reasonably expected, but it must also be expected that the harm will be of a significant nature.
It should be noted that the test in section 30(1)(b) is not concerned with the question of probabilities or possibilities, but with whether or not the body’s expectation is reasonable. It is sufficient for an FOI body asserting the exemption under section 30(1)(b) to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations, and it is not required to demonstrate that such an outcome will definitely occur. That being said, the FOI body should show how release of the record could reasonably be expected to cause the harm envisaged, i.e. it should show the link between granting access to the records and the harm identified. It should do this by reference to the specific records being considered for release. An FOI body must demonstrate that link, and a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged.
As outlined above, the significant, adverse effect must be on the performance by an FOI body of any of its functions relating to management. This Office considers that the word “management” is a word of wide import, apt to cover a variety of activities of an FOI body, including matter such as
In its submissions to this Office, the HSE argued that the records at issue relate to its role in the management of support and resources to the private nursing home in crisis during the on-going COVID 19 pandemic. It said there was a continued requirement for the HSE to react to the evolving crisis in nursing homes during the pandemic. It argued that disclosure of the records may prejudice the sharing of information which would enable the management of services generally and particularly in an emergency situation as is the case during this on-going pandemic. It argued that it was important to safeguard the flow of information between the HSE and the private nursing home. It said it required the space to consider all information in developing a management response to the unprecedented crisis as it unfolded in the private nursing homes. It said it required the private nursing home in question and other private nursing homes to continue to provide information to the HSE in this regard.
The HSE further argued that the release of the records at issue could reasonably be expected to impact on staff continuing to volunteer to work within private nursing homes in a crisis response. It said it needed to ensure the continued support of volunteer nurses and health care assistants to private nursing homes during the pandemic.
Having examined the contents of the records at issue, it is not clear to me how their release could reasonably be expected to result in the adverse outcome envisaged. The HSE pointed to the fact that the COVID-19 pandemic remains ongoing, arguing that the free flow of information between private nursing homes and the HSE, and the continued support of volunteer nurses and health care assistants to nursing homes, could be jeopardised by the release of the records. While it is of course true that COVID-19 continues to present very significant challenges to healthcare services generally, the situation in Ireland today in respect of the pandemic is very different to that which prevailed at the time the records were created. Generally speaking, there has been huge progress made in terms of knowledge and treatment of COVID-19. While the records undoubtedly reveal the depth of the challenges facing the nursing home in the early days of the pandemic, the scenario facing nursing homes is markedly different at this point in time. Moreover, the extremely difficult situation faced by nursing homes across the country in the early days of the pandemic has been extensively publicised in the media and is undoubtedly a matter of public record. This being the case, I cannot see how the release of the records could reasonably be expected to result in the significant adverse outcomes posited by the HSE. The HSE has made a general prediction that the outcomes it envisages may come to pass, but to my mind has not linked this forecast to the specific content of the records, and has not provided any evidence to support its assertions. As such, I find that the HSE has not justified its refusal of the records at issue under section 30(1)(b).
Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition.
In addition, Paragraph (I) of section 2 of the Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid ...". Similar information is excluded in the case of service providers under Paragraph (II) of section 2.
In its submissions regarding section 37(1), the HSE stated that the withheld records contained health information of patients and staff of the private nursing home. The HSE stated that personal information may not on the face of it be about an identifiable individual, but could still be personal information if it allowed an individual to be identified. It stated that, as the nursing home continued to feature in the media, and in circumstances where the release of information under FOI is generally considered to be release to the world at large, the HSE stated that it was concerned that the release of the information in the records would result in individuals being identifiable.
In relation to the records withheld by the HSE in whole or in part under section 37(1), I would make three initial findings as follows. Firstly, I note that many of the redactions made to the records that were partially withheld under section 37(1) relate to the email address of a specific HSE staff member. The email address also appears in a number of the records that were withheld in full. Although not a HSE address, the email address from which this HSE officer has corresponded throughout the records appears to relate to an organisation that operates under the aegis of Dundalk Institute of Technology, which is also an FOI body. As such, on the basis of the exclusion from the definition of personal information provided for in Paragraph (I) of section 2 of the Act, I find that this email address is not personal information and as such, section 37(1) does not apply.
Secondly, of the other redactions to the records which the HSE withheld in part, I note that many relate to the mobile telephone numbers of certain individuals. In addition, the mobile numbers of individuals appear in a number of the records that were fully withheld. The HSE said that some of these withheld numbers were the personal mobiles of individuals. However, it also explained that HSE personnel are provided with a HSE mobile phone for Health and Safety purposes. It said many of its staff are lone working operational in the field and that, on occasions, a staff member will provide a mobile number to a service user on a 'need to know' basis in the course of provision of support and services to the service user. It said it is not intended that such numbers would be available in the public domain and for this reason, the mobile numbers were redacted. It added that the implications of working in a COVID environment did involve some staff members utilising personal mobile numbers also. Having considered the HSE’s submissions, I accept that the mobile phone numbers contained in the records at issue comprise personal information relating to the holders of those phones. As such, I accept that section 37(1) applies.
Thirdly, many of the records contain the names and contact details of staff members of the nursing home. As I have outlined above, the Act details 14 specific categories of information that is personal information without prejudice to the generality of the definition. One of those categories is information relating to the employment or employment history of the individual. As such, I find that section 37(1) applies to all such information in the records. For the avoidance of doubt, several of the records refer to only the first name, or the first name and job title, of certain nursing home staff. Where such staff, even where they are not named in full, are publicly identifiable by reference to their first name and/or job title, I find that section 37(1) applies.
In relation to the remainder of information at issue, I note that it includes information relating to both the staff and the residents of the nursing home, such as information relating to the contraction of Covid-19. In so far as the disclosure of such information would involve the disclosure of personal information relating to identifiable individuals, I am satisfied that section 37(1) applies. However, in many instances, it seems to me that the individuals concerned are not identifiable and as such, section 37(1) cannot apply. I have appended to this decision a table of the information in the records to which I find section 37(1) applies. For the avoidance of doubt, I find that section 37(1) does not apply to any other of the withheld information, apart from the information outlined in my second and third initial findings above and the information specifically identified in the appended table. In particular where identifying details of employees of the HSE or other public bodies appear in the records, in the context of the performance of their functions, this information falls within the exclusion to the definition of personal information contained in Paragraph (I) of section 2 of the Act and thus cannot be exempt from release under section 37(1).
Other provisions of section 37
In relation to those withheld records and redactions to which I have found section 37(1) to apply, I must also go on to consider the other provisions of section 37 to which section 37(1) is subject. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply.
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply.
In relation to the applicability of section 37(5)(a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual or individuals to whom the information relates. In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act, which provides that an FOI body must have regard to 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. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors  IESC 57, 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”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In relation to the issue of the public interest, it is also important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner  IESC 26 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.
The information that I have identified in the records as falling within the scope of section 37(1) of the Act is of an inherently private nature. Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find that the public interest in granting access to the information at issue does not, on balance, outweigh the right to privacy of the relevant individuals. I find, therefore, that section 37(5)(a) does not apply.
Accordingly, I find that the HSE was justified in refusing access, under section 37(1) of the Act, to the information I have identified as comprising personal information, as set out in the appended table.
As previously outlined, the HSE partly withheld Record 70 under section 36(1) of the Act. The HSE indicated in the Schedule of Records that it had redacted Record 70 under section 36(1)(a) of the Act. However, I take the view that section 36(1)(b) is the more appropriate provision under which to consider the matter having regard to its arguments for withholding the information at tissue.
Section 36(1)(b) provides a mandatory exemption to the release of a record where it contains financial, commercial, scientific or 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 or her profession or business or otherwise in his or her occupation. It should be noted that 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 subsection (1)(b) is whether disclosure of the information “could reasonably be expected to result in material financial loss or gain”. The test in this regard is not a question of probabilities or possibilities, but rather whether the FOI body’s expectation is reasonable. Thus, a body citing section 36(1)(b) should demonstrate 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 at issue.
The harm test in the second part of subsection (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. This is a considerably lower standard of proof than that contained in the first part of section 36(1)(b). This being said, 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.
The HSE described the information at issue as being commercially sensitive to businesses as it contained costs for resources for the private nursing home. It argued that the information redacted is not available in the public domain and to release it would affect the competitive position of the company in future tendering processes.
The information at issue comprises the details of the price a cleaning company quoted for a once-off deep clean for the nursing home. It is important to note that the price quoted is now almost two years old and was quoted in the height of the pandemic when demand for such cleaning services was extremely high and such resources were scarce. As such, it seems to me to be highly unlikely that the disclosure of the price quoted under those circumstances could possibly give rise to the harms identified. It is likely to be of little or no relevance to any future tendering of similar cleaning services. Accordingly, I find that the HSE has not justified its refusal of the information sought under section 36(1).
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the HSE in this case. I find that the HSE was not justified in refusing access to any of the information at issue under sections 30(1)(b) or 36(1).
In respect of the records that were refused in whole or in part under section 37(1), I find that the HSE was justified in refusing access only to the information that I have identified in the table appended to this decision. I find that it was not justified in refusing access to the remaining information.
I direct the release of all of the remaining records and information, apart from that information to which I have found section 37(1) to apply, as set out in the appended table.
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.