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Case Number: 150284

Whether the Department was justified in its decision to refuse access under section 35(1)(a) of the FOI Act to a feasibility study on the introduction of Periodic Payment Orders in Ireland

Conducted in accordance with section 22(2) of the FOI Act by the Information Commissioner

Background

On 19 June 2015, the applicant made an FOI request to the Department for access to records including a report entitled "Feasibility Study on the introduction of Periodic Payment Orders (PPO's) in Ireland. This report was referred to in the Civil Liability (Amendment) Bill 2015. PPO's are used to compensate claimants in personal injuries cases through a series of regular payments over a claimant's lifetime. They are an alternative to paying a claimant a single lump sum to cover all of their future costs.

In this case, it is useful to set out the context of the record's creation. In 2010, the President of the High Court established a Working Group on Medical Negligence Periodic Payments (WGMNPP) to examine the case for legislation to provide for PPO's in personal injury cases. WGMNPP, which comprised representatives of the legal profession, the insurance industry and the State Claims Agency (SCA), presented its report in October 2010. The Government examined its recommendations and decided in January 2013 that legislation should be enacted to provide for PPO's in cases of catastrophic injury involving State defendants. It further decided that extending PPO's to cases involving non-State defendants should be examined by the Department of Justice in co-operation with the Department of Finance. The Department of Finance asked the National Treasury Management Agency (NTMA) acting as the SCA to commission a feasibility study. The resulting study is the record the subject of this review. The SCA provided a copy of it to the Department of Finance who in turn provided a copy to the Department of Justice on 2 April 2014. A further report (published on the Department's website) of the interdepartmental working group on legislation on PPO's chaired by the Department of Justice and comprising representatives from the Departments of Justice and Finance, other Government Departments/Offices and the SCA, refers to the feasibility study and identifies the authors as Towers Watson.

On 23 July 2015, the Department refused the applicant's request citing the confidentiality of the report. The applicant applied for an internal review of the decision. On 14 August 2015, the Department upheld its original decision. Both decisions relied solely on section 35(1)(a) of the FOI Act. On 1 September 2015, the applicant applied to my Office for a review of the Department's decision. The applicant and the Department made submissions in the course of this review and the Department also forwarded a short statement in which the NTMA set out its position. On 16 October 2015, my Office served notice on the Department under section 23 of the Act requiring it to furnish a proper statement of reasons for its refusal including the required consideration of the public interest which it had neglected to set out in its decisions. The statement was subsequently received and forwarded to the applicant.

At this stage, I must bring the review to a close by the issue of a formal binding decision. In conducting this review, I have had regard to correspondence between the applicant and the Department, to correspondence between the Department and this Office, to correspondence between the applicant and this Office, to the contents of the record at issue and to the provisions of the FOI Act.

Scope of Review

The applicant requested the final report and all documentation in relation to it, including instructions given to the authors, any correspondence to and from them and drafts of the report. In reply to my Office's queries, the Department of Justice explained that it had no role in commissioning the report or instructing the authors; it said that it did not engage in correspondence with them. The Department provided my Office with email correspondence from March - April 2014, which show the Department's request for a copy of the final report and the conditions under which it was provided. I am satisfied that the Department was not engaged in correspondence with the authors of the report and was not provided with drafts of the report. I have no reason to dispute the Department's position and accept that the only record it holds within the scope of the applicant's request is the final report. Accordingly, my review is confined to whether the Department was justified in refusing to release the report on the basis that it is exempt under section 35(1)(a) of the Act.

Preliminary Matters

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 Department to satisfy me that its decision is justified. In accordance with my Office's procedures, the Investigator reminded the Department of the fact that failure to justify a claim for exemption may lead to a decision to release the record. He drew attention to the requirements of the exemption and gave the Department an opportunity to justify its decision, to address the requirements of the section 35(1)(a) exemptions and to provide any other relevant information that it wished to have taken into account.

The release of a record under the FOI Act is considered, effectively, as release to the world at large. Furthermore, it has been recognised that a review under section 34 of the FOI Act is de novo which means that it is based on the circumstances and the law at the time of the decision. This view of my role has been endorsed by the High Court in the judgment of O'Caoimh J. in Minister for Education and Science v Information Commissioner [2001] IEHC 116.

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 record's content is limited.

Finally, section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading.

Analysis and Findings

The Report
The report consists of six sections and 5 appendices. It contains background information on PPO's and analysis of issues arising in introducing PPO's in Ireland including data apparently provided by representatives of the insurance industry.

Section 35 - Information obtained in Confidence
In this case the Department based its decisions and its submissions to my Office exclusively on section 35(1)(a) of the Act. Section 35(1)(a) provides a mandatory exemption for records containing information given to an FOI body in confidence. Section 35(2) provides that section 35(1) does not generally apply where a record is prepared by a member of staff of an FOI body or a service provider, unless disclosure would constitute a breach of a duty of confidence which is owed to a person other than an FOI body, member of staff of an FOI body or service provider. Section 35(3) provides that section 35(1)(a) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request.

Does section 35(2) dis-apply section 35(1) in this case?
The NTMA is among the bodies referred to as "partially included agencies" in Part 1 of Schedule 1 to the Act. The first step is to determine whether the NTMA (acting as the SCA) was an "FOI body" as defined by the FOI Act when it commissioned the report, and, if so, to go on to consider whether the report was provided to it by a "service provider" as defined by the Act. "FOI body" means a public body or prescribed body. Section 6(2) of the Act establishes that, subject to the provisions of Schedule 1 Part 1 of the Act, a body listed in the Schedule is a public body. Schedule 1 Part 1 provides that "Section 6 does not include a reference to-

...(w) the National Treasury Management Agency insofar as it relates to records -

...(ii) concerning the performance of its functions under Part 2 of the National Treasury Management (Amendment) Act 2000, other than in relation to the general administration of those functions, ..."

In submissions to my Office, the Department states "in this case the report, which is the subject of this request, is not a record relating to the "general administration" of the SCA's functions and is therefore outside the scope of the FOI Act when sought from the NTMA."

Part 2 of the National Treasury Management (Amendment) Act 2000 contains a list of the functions of the SCA. One of the functions of the SCA is to advise and assist a state authority whenever it is requested by such an authority to do so in relation to measures to reduce claims or to identify sources of risk. I am satisfied that, in commissioning the report on PPO's, the SCA was performing one of its functions under the NTMA Act 2000. I am further satisfied that the report does not concern the general administration of the SCA's functions. I find therefore that the SCA is not a public body in the context of the record at issue and that section 35(2) does not apply to the report. In light of this finding, it is not necessary to examine the remaining requirements of section 35(2).

Section 35(1)(a)
Section 35(1)(a) applies to a record containing information given to an FOI body in confidence. In order 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 and
- that the information was given on the understanding that it would be treated by it as confidential and
- 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 the body.

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.

Applicant's Submissions

The applicant argues that it is not possible for state agencies to restrict access under the FOI Act by indicating that documents have been provided in confidence. The applicant contends that if this was possible the whole purpose of the FOI legislation could be circumvented by agencies or persons submitting documents "in confidence" or by imposing confidentiality clauses. He says that it is important to note that it was the Department and not the SCA that was "the driver" of the legislation being developed on foot of the consideration of PPO's. He contends that the recommendations of the report differ from those of the working group in relation to a key element of the PPO proposals and that it is unacceptable that the State would set out its proposals on PPO's while keeping the basis for certain recommendations "a secret".

Department's Submissions

The Department states that in the compilation of the report, the authors engaged with the insurance industry and sought its input. The Department contends that this exercise was undertaken on the basis that the report would remain confidential and the insurance industry engagement was premised on this understanding. The Department and the NTMA submit that the release of the report, in breach of the conditions of confidentiality surrounding its preparation, could interfere with the willingness of the insurance industry to co-operate with similar exercises in the future. The Department argues that it is important that it should have access to such information for the purposes of developing policy. The NTMA, in correspondence to the Department, says that the report was provided to the Departments of Finance and Justice "with the prior agreement of the provider" on the basis that they would not disclose it.

First and Second Requirements of section 35(1)(a)
In determining whether the information was given in confidence and on the understanding that it would be treated by the FOI body as confidential, a number of factors may be relevant. These include the expectations of the person giving the information to the FOI body, the purpose for which the information was provided and the circumstances in which the information was received, including any statements or assurances given at the time the information was given and any action which the FOI body may be expected to take in relation to the information.

The service providers/authors of the report purport to place restrictions on the distribution and use of the report furnished to the SCA. I have difficulty in accepting that information can be deemed to have been given in confidence simply because such conditions appear on the face of the report. It seems to me that any restrictions on disclosure would be a matter for the SCA who commissioned the study that resulted in the report. However, I accept that the first two requirements for information having been given in confidence are met. I make this finding having regard to the expectations of the service provider (apparently accepted by its client, the SCA, which is not a public body in the context of this record); the position of the Department of Justice that it treated the report as having been given in confidence and restricted its circulation to officials "directly working" on the PPO legislation and the evidence that the Department of Finance believed itself bound by the restrictions on disclosure imposed by the service provider when it provided a copy of the report to the Department of Justice.

This is not to say that I accept that the understanding was necessarily reasonable in the circumstances. In the case of Rotunda Hospital v The Information Commissioner[2011] 1 IR 729, [2011] IESC 26, the Supreme Court found that it is the circumstances in which the information was imparted and received, rather than the nature of the information, that is important in determining whether the first two requirements of section 26(1)(a) are met. Thus, a technical, legal interpretation of "confidence" does not apply in relation to section 26(1)(a), which means that the information need not be concerned with "private or secret matters" or otherwise have the "necessary quality of confidence". I note that the circumstances in the Rotunda case involved a professional relationship between a health professional and patient and are thus very distinguishable from a case involving information concerning PPO's imparted by a service provider in the context of legislative proposals described above.

Third Requirement

The third requirement for section 35(1)(a) to apply is that disclosure of the information would be likely to prejudice the giving to the FOI body of further similar information from the same person or other persons. It is not necessary that disclosure would definitely prejudice the supply of information; rather what is required is that disclosure would be likely to prejudice the supply of similar information. Factors to be considered include the nature of the relationship between the information provider and the FOI body. The Department's arguments identify potential prejudice to the supply of information from the insurance industry given to the SCA and forwarded to the Department of Finance. I take it that, as the SCA is not an FOI body in this case, the Department of Finance is the relevant recipient for the purposes of assessing whether prejudice to future supply of similar information would be likely to occur. The question I must address is whether release of the record under FOI would prejudice the supply of similar information to the SCA, since, if the answer is yes, the supply of this type of information to the Department of Finance would also be prejudiced.

In my view, release of the report would not be likely to prejudice the supply of similar information by the insurance industry either directly or indirectly to the SCA. Notwithstanding any assurances given by the service provider to Insurance Ireland or other representatives of the industry, I consider that it would be in the interests of the insurance industry to supply information and views in support of its position to any body engaged in advising the Government on possible changes to how claims are handled and awards made. Indeed, given that draft legislation is being prepared which would be likely to impact on the interests of the insurance industry, it seems likely that the industry would be anxious to engage on the issue. In this regard, I note that the Department of Justice consulted with various bodies representing the Insurance and Re-Insurance industry in relation to PPO's. It reproduced their responses - including estimates of the impact of PPO's on premiums - in the working group's published report referred to earlier in this decision. As regards the content of the record, I note also that there is extensive information, including views of the insurance industry and observations on the UK experience of PPO's, available through the internet. I consider that it has not been shown by the Department that disclosure under FOI of this report would be likely to prejudice the giving of further similar information by or on behalf of the insurance industry to an FOI body.

The Department identified no particular information that could be regarded as commercially or otherwise sensitive. I note that the report of the findings of the working group in which both Departments were involved refers extensively to the report the subject of this review and it is clear that the options considered were of critical significance in the lead up to the publication of the heads of the Civil Liability (Amendment) Bill, the General Scheme of which was published by the Minister for Justice on 27 May 2015. In fact, the recommendation of the original working group on Medical Negligence was that the feasibility study would be carried out by the SCA. It was clear from that stage that the report would be furnished in due course to the Departments of Finance and Justice. In my view, all participants in the process would have been aware that the content of the report would be circulated further from the SCA to public bodies.

Finally, I cannot accept the claim being made by the Department that release of the report under FOI would be likely to result in the service provider being reluctant to provide similar information to the SCA in the future. This is a case in which it may well be in the interests of the supplier of the information to continue to accept further commissions from State bodies in this area. I expect that the company involved would be likely to continue to provide similar expertise since it stands to benefit from such a commercial arrangement.

For the reasons set out above, I am not satisfied that the third requirement of section 35(1)(a) has been met in the circumstances and, having regard to section 22(12)(b) and the burden of proof on the Department, I find that it has not justified its reliance on the exemption. As I have found section 35(1)(a) not to apply, there is no requirement for me to consider the public interest test under section 35(3).

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I annul the decision of the Department and direct it to release the record.

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 not later than four weeks after notice of the decision was given.

 

Peter Tyndall
Information Commissioner