Whether the HSE was justified in refusing access to records comprising correspondence sent and received by a named HSE individual, in relation to a named private nursing home, from 21 March 2020 to 15 May 2020

11 October 2023

Background

In a request dated 26 October 2020, the applicant sought access to all correspondence, emails, reports, phone call notes and logs, and video conference call records sent to, including and created by a named employee of the HSE, in relation to a named private nursing home, for the period 31 March 2020 to 15 May 2020.  In a decision dated 10 June 2021, the HSE identified 147 records that fell within the scope of the request and refused the request in full, citing sections 30(1)(a), 30(1)(b) and 37(1) of the FOI Act as the grounds for its decision. On 8 July 2021, the applicant sought an internal review of the HSE-�s decision. In its internal review decision, issued on 2 September 2021, the HSE affirmed its original decision to refuse access to the records. On 16 November 2021, the applicant applied to this Office for a review of the HSE-�s decision.

In its submissions, the HSE indicated that it now sought to rely on certain additional provisions of the FOI Act as grounds on which to refuse access to the records, namely sections 30(1)(c) and 36(1).  Subsequently, after this Office had issued its decisions on a number of related reviews arising from FOI requests made by the same applicant, the HSE reviewed its decision on this request (on the basis that certain of the records that fell within the scope of this review had also fallen within the scope of the other reviews, and in our decisions on those reviews this Office had directed the release of the records). Following its review, on 2 March 2023 the HSE provided a revised schedule of records, indicating that it now sought to withhold certain of the records under sections 30(1)(b), 37(1), 36(1)(b) and 36(1)(c) of the FOI Act. In subsequent correspondence, the HSE further indicated that one further portion of a particular record (the top of record 12, at page 33), which it had initially sought to continue to withhold under section 30(1)(b) following its review of its original decision, could now also be released to the applicant.

The HSE also indicated in its revised schedule that it regarded certain information in the records as falling outside the scope of the review. The HSE also released, in full or in part, a number of additional records that had not been considered in previous applications made by the applicant to this Office.

As the applicant had not had an opportunity previously, in the context of this matter, to consider the applicability of sections 30(1)(c), 36(1)(b) or (c), or the HSE-�s argument that certain records sought were outside the scope of her request, I wrote to the applicant to put her on notice of these issues and to invite her to make any further submissions that she wished in relation to same. The applicant subsequently made further submissions and I have considered these in full.

Furthermore, in the course of conducting this review I formed the opinion that the interests of a number of third parties were potentially affected by the release of certain of the records. Accordingly, I wrote to the third parties to bring the matter to their attention and to invite them to make any submissions that they wished. One third party subsequently made submissions, which I have considered in full.

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 parties. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Preliminary Matters

The revised schedule of records provided by the HSE indicated that a number of records that came within the scope of this review had been previously released to the applicant following previous reviews by this Office of the HSE-�s decisions on previous FOI requests she had made. With the applicant-�s agreement, these records have been removed from the scope of this review.

I also wish to note that, for the ease of reference of the applicant, I have included an appendix at the end of this decision outlining the records, or the pages in the records, remaining at issue following the HSE-�s review of its initial decision on the applicant-�s FOI request, along with the grounds on which the HSE sought to withhold each remaining record.

Finally, it is important to note that a review by this Office is considered to be -�de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.

Scope of Review

This review is solely concerned with (i) whether the HSE was justified in withholding the records sought by the applicant under sections 30(1)(b) and (c), 36(1) and 37(1) of the FOI Act, and (ii) whether the HSE was entitled to withhold certain information in the records on the basis that it falls outside the scope of the applicant-�s FOI request.

Analysis and Findings

Records deemed out of scope by the HSE

In its revised schedule of records, the HSE identified certain information in the records that it sought to withhold on the basis that it did not fall within the scope of the applicant-�s request. The HSE took the view that this information was outside the scope of the request because it related to other nursing homes besides the one specified in the applicant-�s request. The HSE withheld information on this basis from records 19, 21, 38, 71, 96, 106, 107, 116, 122 and 128.
I have examined the records and, with the exception that I outline below, am satisfied that the relevant information is indeed outside the scope of the applicant-�s FOI request, and of this review, on the basis that it does not refer to the nursing home specified in the request. On that basis, I find that the HSE was justified in withholding this information from release.

The exception to this finding is the final redaction to page 281 (record 107), which does relate to the relevant private nursing home.

In addition, although the HSE did not specifically argue that the following information in the records was outside the scope of the request, I have examined the records and consider that it also falls outside the scope of this review, as it also does not refer to the private nursing home in question:

• page 16 of record 4
• page 50 of record 17
• the first three redactions to page 51 of record 18
• record 114
• page 376 of record 128
• the first redaction to page 466 of record 141.

I wrote the applicant to put her on notice that I considered that the above additional records (or sections of records) were outside the scope of the request, albeit that the HSE did not specifically make that argument, and invited her to make any further submissions that she wished. No further submissions were received from the applicant on this point.

I note that the HSE also sought to rely on certain provisions of the FOI Act as grounds to withhold the same material in records 21, 107 and 122. In circumstances where I have found this information to be outside the scope of this review, I am not required to examine the extent to which it might also be exempt from release under these provisions.

Section 37(1)

The HSE relied on section 37(1) of the FOI Act to withhold access in part to records 1, 5, 7, 10, 12-19, 21, 25, 37, 43-44, 46, 51, 54, 62-63, 66, 67, 70-71, 77, 80, 83-85, 88, 91, 96, 98-102, 107, 110-113, 122, 128-129, 136-138, 140-141 and 145. The HSE also withheld in full records 33 and 104 under section 37(1). As outlined above, I have already found the first three redactions to page 51 of record 18, as well as the material redacted from pages 58 and 59 (record 21) and record 107 (apart from the final redaction to page 281), record 122 to be exempt from release on the basis that this material is outside the scope of this review. In those circumstances, I am not required to also examine the extent to which it might also be exempt from release under section 37(1).

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(1) 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 relevant records had been withheld because they contained health information relating to patients and staff of the private nursing home. The HSE stated that, as the private nursing home continued to feature in the media, it had concerns that information in the records, including that which on the face of it may not be about an identifiable individual, would allow individuals to be identified.

I have examined the records and I accept that much of the information that the HSE redacted under section 37(1) of the FOI Act personal is personal for the purposes of section 2 (with some exceptions, that I outline below). In particular, I note that, in addition to the information relating to the health of staff and patients that the HSE highlighted in its submissions, the records also contain the names and contact details of numerous individuals. I am satisfied that this information is personal for the purposes of section 2 of the FOI Act.

There are some redactions to the records that I do not accept constitute personal information. In particular, I find as follows:

• record 15: the second redaction to page 44 is the name of the private nursing home
• record 16: the first redaction to page 46 is the name of the private nursing home
• record 62: the first five redactions to page 158 relate to third party commercial entities
• record 63: the final three redactions to page 161 relate to third party commercial entities
• record 140: the first three redactions to page 465 relate to third party commercial entities.

Aside from the above, I accept that the material withheld from the records under section 37(1) of the FOI Act by the HSE is personal information. However, that is not the end of the matter as 37(1) is subject to the other provisions of section 37. 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 [2020] IESC 57 (-�the Enet 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-�. 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 [2011] IESC 26 ("the Rotunda case"). It is noted that a true public interest 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.

In its submissions regarding section 37(5)(a), the HSE recognised the public interest in ensuring openness, transparency, and accountability within public bodies, as well as the public interest in the public being able to access information held by the HSE. The HSE argued that this public interest was met by its engagement with, support of, and provision of resources to the nursing home during the Covid-19 pandemic. It argued that, on balance, the public interest favoured the non-release of the personal information in the records.

I have had 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. In addition, I consider that some of 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. On balance, I find that the public interest in granting access to the information at issue does not 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 FOI Act, to the information in the records that I have identified as personal for the purposes of section 2.

Section 30(1)

The HSE relied on section 30(1)(b) to withhold from release information in records 67, 69, 72, 73, 75 and 77, and on section 30(1)(c) as a basis to withhold from release information in records 72 and 73.

The HSE also cited section 30(1)(b) of the FOI Act as a basis on which to withhold in full record 33. However, in circumstances where I have already found this record to be exempt from release under section 37(1), I am not required to examine the extent to which it might also be exempt under section 30(1)(b).

Section 30(1)(b)

Section 30(1)(b) of the FOI Act 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).

Section 30(1)(b) is a -�harm based-� exemption, i.e. it applies where the granting of access to a record can reasonably be expected to cause a particular prejudice or harm. 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 record(s). 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.

Furthermore, an FOI body seeking to rely on section 30(1)(b) 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 these provisions 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 FOI 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

The wording of section 30(1)(b) makes it clear that the words "industrial relations and management of its staff" are, in the context of that section, a subset of "functions relating to management". Other than the specific references to industrial relations and the management of staff, section 30(1)(b) does not indicate what other management functions are embraced by the term "functions relating to management". This Office has held that management is a word of wide import and that it is apt to cover a variety of activities of an FOI body apart from management of staff and industrial relations. In its submissions, the HSE identified the relevant function relating to management as its role in the management of support and resources to the nursing home during the Covid-19 pandemic. I accept that this is a function relating to management for the purposes of section 30(1)(b).

In relation to the significant, adverse effect to that function that could be reasonably expected to flow from the release of the information, the HSE stated in its submissions that it was important to safeguard the flow of information between it and the nursing home, arguing that disclosure of the information could prejudice the sharing of information that would enable the management of services generally, and particularly in an emergency situation such as the Covid-19 pandemic. The HSE also argued that it was required to react to the evolving crisis in nursing homes during the pandemic, and that it considered that significant harm could occur from the release of the information in the records that it withheld under section 30(1)(b), namely the impact on staff volunteering to work within private nursing homes in a crisis situation. The HSE also argued that it required the space to consider all information in developing a management response to the unprecedented nature of the crisis as the pandemic unfolded in nursing homes. To this end, the HSE argued that it required the nursing home at issue in this case, and other private nursing homes, to continue to provide relevant information to it, something that it contended would be prejudiced by the release of the relevant information.

Certain information that the HSE redacted from the records under section 30(1)(b) comprises details of telephone numbers relating to dial-in details for a specified teleconference (in records 67, 69 and 77). Certain other information -� in records 72, 73 and 75 -� pertains to discussions regarding the management of the nursing home during the pandemic.

In the course of conducting this review, I formed the preliminary view that the disclosure of this information at issue could not reasonably be expected to result in the significant, adverse effect on the relevant function relating to management that the HSE has identified. I formed this preliminary view on the basis, first of all, that the Covid-19 -�emergency-� is now generally considered to be over (for example, the World Health Organisation (WHO) declared an end to Covid-19 as a global health emergency on 5 May 2023, as outlined in this article:https://news.un.org/en/story/2023/05/1136367). As outlined above, a review by this Office is considered to be -�de novo-�. Accordingly, my preliminary view was that, while the concerns of the HSE regarding potential harms to the management of, and the flow of information to and from, the nursing home at issue (and other nursing homes) may well have been entirely legitimate during the time that an emergency situation existed, it was not immediately apparent to me how such concerns could still be said to be valid at this juncture. Secondly, it was also brought to my attention by the applicant that the nursing home at issue appeared to have now ceased trading (or at least to now be under new ownership). My preliminary view was therefore that the question of harms to the management of that specific nursing home appeared to be moot.

I put the above preliminary views to the HSE and offered it the opportunity to make additional submissions addressing same. In response, the HSE made detailed further submissions, stating that, in relation to the teleconference dial-in details contained in records 67, 69 and 77, it retained concerns regarding the harms that could flow from the release of this information. In particular, the HSE stated that it continued to hold Covid Response Team calls, on a weekly basis, and that the relevant dial-in details had remained constant between September 2021 and April 2023. While the information in the records in question related specifically to 2020, the HSE stated that it could not confirm that the specific teleconference details were not currently in active use. In those circumstances, the HSE stated that the details, if released to the public at large, could potentially result in anyone being able to secretly join the teleconference, and listening to HSE meetings relating to its management functions and without the knowledge of the participants in the call. The HSE argued that this could reasonably be expected to jeopardise or harm the HSE-�s ability to effectively carry out various of its functions related to management, such as would be discussed in the teleconferences.

In relation to the possible relevance of the Covid-19 -�emergency-� being over, the HSE indicated that it retained overarching concern that the release of the information in records 72, 73 and 75 would have a significant impact on staff volunteering to assist in private nursing homes in the event of a future crisis where HSE assistance was required. The HSE argued that, although the WHO had declared an end to the pandemic, on the ground in the health services Covid-19 was still very much prevalent, with outbreaks in private and public nursing homes being declared on an ongoing basis. The HSE argued that, were the information at issue to be disclosed, HSE staff would be reluctant or refuse to volunteer in the future if needed. It was also relevant in this regard, argued the HSE, that although HSE staff had volunteered for work in nursing homes during the pandemic and had performed with considerable diligence, they feared they would be subject to media scrutiny and blame. The HSE evidenced this with certain documentation that highlighted situations in which staff had refused or were unavailable to carry out volunteer nursing home work, citing the working conditions or the then-prevailing situation of a Covid-19 outbreak in the facility. The HSE argued that the effect of the release of the information at issue being disclosed on its staff-�s willingness or ability to volunteer in a future crisis situation should not be underestimated. The HSE also pointed in this regard to local and worldwide media attention on Covid-19 deaths in nursing homes, noting that recent newspaper articles on the topic had referenced the possibility of criminal manslaughter and gross negligence charges being pressed.

The HSE also stated that, in the very early stages of the Covid-19 pandemic, the National Public Health Emergency Team (NPHET) had recommended the establishment of

an expert panel -�to examine the complex issues surrounding the management of COVID-19 among this particularly vulnerable cohort-� i.e. nursing home residents. The outcome of the panel-�s report was 86 recommendations, one of which was that the HSE establish a Community Support Team, among the purposes of which would be to support residential care facilities and home support service providers to build their capacity to effectively self-manage in terms of prevention, preparedness planning and outbreak management in the event of further COVID-19 surges or other infectious disease outbreaks. The HSE argued that, while the release of the relevant information might not now be said to have a possible harmful effect on its management functions relating to the Covid-19 emergency that is now past, it could reasonably be expected to do so in relation to Covid-19 and other public health situations that continued to exist today and would into the future.

I have carefully considered the additional arguments above of the HSE and I find that, on balance, it has put forward a persuasive case for a reconsideration of my preliminary view. I consider that it has effectively set out the basis on which it considers that a reasonable prospect exists of the significant, adverse harms to its management functions that it specified coming to pass as a result of the release of the information. On that basis, I find that it was entitled to withhold the relevant information in records 67, 69, 72, 73, 75 and 77 under section 30(1)(b) of the FOI Act.

I should note that the HSE also addressed the potential relevance of the fact that the specific nursing home at issue is now under new management, arguing that -� irrespective of the fact that it had ceased trading under its former management -� it continued to exist on the same site, and that, accordingly, the situation that pertained in the facility during the Covid-19 emergency was still live in the memory of the local community. The HSE argued that it was important that the new management team was permitted to run its business without being impacted by the relevant information being released. I am not convinced that this constitutes a valid argument under section 30(1)(b) of the FOI Act. However, as I have already found that the relevant information is already exempt from release on the basis of the other section 30(1)(b) arguments made by the HSE, I do not need to make a finding in relation to this specific argument

In addition, in circumstances where I have found section 30(1)(b) to apply to the relevant redactions made to records 72 and 73, I am not required to examine the extent to which section 30(1)(c) of the FOI Act might also apply to these records.

Section 36(1)

The HSE relied on sections 36(1)(b) and (c) to withhold from release information in records 4, 15-18, 21, 62-63, 107, 114, 122, 128, 137 and 140-141. I note that I have already found the following records or parts of records to be exempt from release, either under section 37(1) or on the basis that the information in the relevant parts of the records is outside the scope of this review:

• record 4
• record 15 (with the exception of the second redaction to page 44)
• records 17-18
• pages 58 and 59 (record 21)
• record 62 (aside from the first five redactions to page 158)
• record 63 (apart from the final three redactions to page 161)
• record 107, record 114
• record 122
• record 128
• record 137
• the final redaction to record 140 (page 465)
• record 141.

In those circumstances, I am not required to also examine the applicability of section 36(1) to this information.

Section 36(1)(b)

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.

In its submissions on section 36(1) generally, the HSE argued that the release of the relevant information in the records could result in a material financial harm to third party commercial operations that were named in the records. The HSE argued that the information it sought to withhold was not available in the public domain and that to release it would affect the competitive position of the companies in future tendering processes. In addition, the HSE also argued that the information in the records at issue referred to the inner workings of the private nursing home. It argued that the FOI Act was not intended to open to scrutiny the internal management of private entities, but rather public bodies.

I note that the redactions at issue comprise the name of the private nursing home (the second redaction made to page 44 of record 15 and the first redaction made to page 46 of record 16), and information relating to third party commercial entities (the first five redactions to page 158 of record 62, the final three redactions to page 161 of record 63 and the first three redactions to page 465 of record 140).

I have examined the material redacted from the records under section 36(1)(b) and find as follows. It seems to me that the context in which the name of the nursing home appears in the relevant records relates to operational matters, specific to the running of the nursing home during the Covid-19 pandemic, and not to commercial matters the disclosure of which could result in the harms provided for in section 36(1)(b). I would also note that the HSE did not seek to withhold the name of the nursing home where it appears elsewhere in the records. In those circumstances, I find that neither the second redaction to page 44 of record 15 nor the first redaction 46 of record 16 constitutes information that is exempt from release under section 36(1)(b) of the FOI Act.

The matter is less straightforward in respect of the redactions made to the records that relate to third party commercial entities. In particular, the first five redactions to page 158 of record 62 relate to companies that, it would appear from the other information in the records, were unable to meet the terms of service provision contracts that they had signed with the nursing home, or were uncontactable for the purpose of arranging the provision of services, or were otherwise unable to provide services to the nursing home during the pandemic. I would accept on balance that the release of this information could reasonably be expected to result in material financial loss to the commercial entities, on the basis in particular of the potential for reputational damage. In those circumstances, I find that the harm test in the first part of section 36(1)(b) is met.

However, I am less satisfied that either harm test in section 36(1)(b) is met in the case of the final three redactions of page 161 of record 63. Firstly, the final redaction to this page appears to me to relate to a hypothetical nursing home, given as an example in a discussion about insurance liability. As the redacted material does not relate to an entity that actually exists, section 36(1)(b) cannot apply.

The preceding two redactions to this record, as well as the first three redactions to page 465 of record 140, refer to third party commercial entities. As outlined above, I wrote to the third party companies to bring to their attention the possible release of information relating to them that was potentially commercially sensitive, and to afford them the opportunity to make any submissions that they wished in relation to the matter. One of the companies subsequently made submissions, in the course of which it argued that its contact with the HSE was in the context of the latter making enquiries about the availability of nursing support for a nursing home. The company advised that it was a provider of care for people in their own homes (ie. not in nursing homes). The company stated that on foot of its discussions with the HSE, it did not provide any nurses to work in the nursing home at issue. The company argued that, in these circumstances, there was no benefit to the information relating to it being disclosed, and the information should therefore be withheld from release.

I consider that the company identified on page 161 of record 63 is named in the context of a relatively straightforward discussion regarding insurance. There is not, to my mind, any information in this record that reflects poorly on the company or would tend to, for example, damage its reputation or otherwise affect its competitive position. I cannot envisage a manner in which the release of this information could reasonably be expected to lead to the harms in either test under section 36(1)(b).
Similarly, the three companies whose names have been redacted from page 465 of record 140 appear in the relatively straightforward context of a discussion about service providers who were contacted with queries regarding nurse availability. In relation to the submissions made by the private company, I would accept that the usefulness of the release of this information to any interested party is very possibly limited in circumstances where the company did not, in fact, provide any nursing staff to the nursing home in question. However, the question of the potential benefit of the information to the requester or any other party is not the test to be considered under section 36(1) in order to determine whether the information is exempt from release.  The test in section 36(1)(b), as outlined above, is whether the record 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. I cannot identify any information in this record that would tend to cause any of these harms either to the company that made submissions, or to the other companies named in the record. I therefore find that section 36(1)(b) of the FOI Act does not apply to exempt this information from release.

Section 36(1)(c)

Under section 36(1)(c) of the FOI Act, access to a record must be refused where the disclosure of the information in the record could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so. Having said that, a party seeking to rely on this exemption should be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure, and explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.

In circumstances where I have found the harm tests in section 36(1)(b) to have been met in the case of the first five redactions to page 158 of record 62, I am not required to examine the extent to which section 36(1)(c) might also apply to this record.

In respect of the other information above to which I have found section 36(1)(b) not to apply, I am similarly unconvinced that section 36(1)(c) is applicable. In the case of the second redaction made to page 44 of record 15 and the first redaction made to page 46 of record 16, the HSE in its submissions did not refer to, and I cannot identify, a relevant negotiation in the material redacted from these records, the conduct or outcome of which could be prejudiced by the information-�s release. Similarly, in the case of the redactions made to page 465 of record 140, the HSE did not specify, and nor can I identify, a relevant negotiation which might be prejudiced by the release of the relevant information.

The matter is slightly different in the case of the material redacted under section 36(1) from page 161 of record 63, in respect of which the HSE again did not specify a relevant negotiation. However, having examined the record I consider that the relevant information can be said to relate to negotiations relating to the provision of nursing services to the nursing home. This being said, as outlined above the redacted information in this record appears in the context of what appears to me to be a relatively straightforward discussion about insurance liability, and I cannot envisage a manner in which the release of this information could prejudice the conduct or outcome of any such negotiations.  
Section 36(3)

In respect of the first five redactions to page 158 of record 62, which I have found to fall within the scope of section 36(1)(b), the matter does not end there as section 36(1) is subject to a public interest test in section 36(3) of the FOI Act. Section 36(3) provides that subsection (1) of section 36 does not apply where, in the FOI body-�s opinion, the public interest would, on balance, be better served by granting rather than by refusing the FOI request.

The HSE did not address the public interest in detail in its submissions, simply stating that on balance the public interest weighed in favour of withholding the information. This notwithstanding, as outlined above, 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. That section recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, the comments of the Supreme Court in the above-mentioned Enet case must also be considered. As outlined above, the Supreme Court in that case held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a -�sufficiently specific, cogent and fact-based reason-� is required -�to tip the balance in favour of disclosure-�. Indeed, the Court held that section 36(1) -�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-�.

Section 36(1) of the FOI Act reflects the public interest in the protection of commercially sensitive information. This Office recognises that there is a public interest in protecting the commercially sensitive information of third parties such as those identified in the relevant records in this case. I accept the HSE-�s argument that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations and, in general terms, was not designed as a means by which the operations of private enterprises were to be opened up to scrutiny. Having regard to the findings of the Supreme Court in the judgment cited above, and in light of the above analysis, I am not satisfied that the public interest would, on balance, be better served by granting access to the information to which I have found section 36(1)(b) to apply.

Accordingly, I find that the first five redactions to page 158 of record 62 are exempt from release under section 36(1)(b) of the FOI Act. However, I find that the other information that the HSE sought to exempt under section 36(1) is not exempt from release under either subsection (b) or (c) of section 36(1).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE-�s decision. I find that the HSE was entitled under section 37(1) to withhold the information in the records to which it refused access under that provision of the FOI Act, with the exception of the information outlined above that I have not accepted is personal information. I also find that the HSE was justified in withholding, under section 30(1)(b), the information that it redacted under that provision of the FOI Act from records 67, 69, 72, 73, 75 and 77. In addition, I find that the HSE was justified in refusing access, under section 36(1)(b), to the first five redactions to page 158 of record 62. However, I find that the HSE was not justified in withholding the remainder of the information at issue, and I direct the release of that information.

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 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.

Neill Dougan
Investigator

Appendix 1 -� Records withheld by the HSE, according to Schedule of Records dated 2 March 2023