Whether the Service Provider is justified in its decision to refuse a request, made under section 7 of the FOI Act, for access to records relating to complaints of sexual assault on the basis that certain records are exempt from release under various provisions of the FOI Act, including sections 21, 22 and 28.

Case Summary

The Senior Investigator found that the Service Provider is justified in its decision to refuse access to some of the withheld records on the basis that they are exempt from release under sections 22 and 28 of the FOI Act; she found that its decision was not justified in relation to certain other some records and parts of records which had been withheld under section 21. She varied the decision of the Service Provider and directed the release of some of the withheld records.

Date of Decision: 06.10.2009

Review Application to Information Commissioner - Freedom of Information (FOI) Acts 1997 & 2003

Background:

The Applicant made an FOI request to the Service Provider on 20 August 2007 seeking access to:

1. All information in relation to complaints made to the Service Provider of sexual type assault upon patients in their care in the past ten years

2. All information relating to the employment of [a staff member]

3. All information relating to the employment of [a staff member]

4. All information relating to Mr ACB

5. All information relating to [a patient of the public body].

6. All information relating to the findings of the enquiry panel put in place by the Service Provider to investigate the allegations of abuse on Mr ACB.

7. All information relating to the scope of the enquiry put in place by the Service Provider  to investigate, inter alia, the allegations of abuse on Mr ACB.

8. All information relating to the relationship between the Service Provider and the HSE.

9. All information relating to the policies and procedures of the Service Provider regarding continued assessment of patients in terms of their medical well being and safety.

10. All information relating to the policies of the Service Provider for allowing patients to leave the Service Provider complex while under the care of the Service Provider .

11. All information relating to policies and procedures of the Service Provider regarding patients in their care, attending private houses of staff members.

12. All information relating to policies and procedures of the Service Provider relating to patients going on personal trips with staff and/or third parties while in the care of the Service Provider.

13. All information relating to the policy and procedures of the Service Provider to medical assessments of patients in their care.

On 16 January 2008, Arthur O'Hagan, Solicitors, (Mason Hayes and Curran, Solicitors are now incorporating Arthur O'Hagan) on behalf of the Service Provider, wrote to the applicant "declining" the request for access to the records (not identified in the "decision'') "other than in respect of personal information relating to Mr ACB''. The solicitors referred to the provisions of section 41 of the FOI Act where decisions did not issue within the statutory period and advised the applicant to apply to the Information Commissioner if he wished to pursue the matter.

The applicant wrote to this Office on 18 January 2008 applying for a review of the public body's decision. Section 34 of the FOI Act provides that the Commissioner may review a decision that was not the subject of an internal review under section 14 of the Act in circumstances where the initial decision was taken by the head of the public body and there is no member of staff of higher rank than the original decision maker delegated to perform the internal review function. However, as no decision on the initial request appeared to have been carried out by the head of the Service Provider and the response of the solicitors was clearly not in accordance with the requirements of the FOI Act, this Office asked the Service Provider to examine the matter and to inform the applicant and this Office of its position on the case. On 2 April 2008 the Service Provider informed this Office that it had decided to grant part of the request by releasing some records and refusing access to certain other records on the basis of sections 10, 21, 22, 26 and 28 of the FOI Act. The applicant appears to accept that some of the categories of records were too broad to allow the Service Provider to identify the records being sought and that, in the case of others, guidelines and policies have been released or are available outside of FOI. At this stage, over 300 records were identified and scheduled.

I note that Ms Alison McCulloch, Investigator of this Office, wrote to the applicant on 24 July 2009 setting out her preliminary views on this case and that the applicant responded on 10 August 2009. I consider that the review should now be brought to a close by the issue of a formal, binding decision.     

In conducting this review, I have had regard to the submissions of the Service Provider as well as those of the applicant. I have examined the records forwarded to this Office by the Service Provider for the purposes of this review.

Scope of Review

In a letter dated 30 April 2009, the Applicant narrowed the scope of this review to confine it to the categories of records listed at numbers 1 to 7 above, with particular emphasis on individual records which he has identified. For the purposes of clarity, I will adopt the record numbering system used by the Service Provider which described and scheduled the records in seven schedules by reference to the categories of records described above.  In particular, the Applicant specified that the records required in schedules number 4 and 7 are:

Schedule 4:  records numbered 15-18, 20, 67, 77, 86, 89, 95, 108, 144-145, 153-154.

Schedule 7:  records numbered  5, 7, 11-12, 14-17, 19-20, 22 and  25-27.

This review is concerned solely with the question of whether the Service Provider is justified in its decision to refuse access to the records identified above on the basis that they are exempt from release under the provisions of the FOI Act.

Preliminary Matters

Firstly, I would like to say that while it forms no part of this decision, I wish to place on record the fact that Mason Hayes and Curran, Solicitors are legal advisers to the Information Commissioner and to state that this has had no bearing on this Office's handling of the review or on my decision.

Secondly, I consider that it is necessary to comment on the handling of this FOI request by the Service Provider and its legal advisers. The notice of the purported decision which issued from Arthur O'Hagan, Solicitors, did not comply with the requirements of the FOI Act in a number of important respects. In particular, the notice failed to state reasons for the decision by reference to exemptions and public interest considerations in accordance with section 8 of the FOI Act. I find it surprising that a legal adviser would purport to issue a decision on behalf of a public body when section 4 of the FOI Act requires that any delegation by the Head of a public body of his or her FOI functions must be to a member of staff of the public body. The fact that litigation had been initiated before the FOI request was received may cause difficulties but I can see no basis for a public body effectively refusing to make a proper FOI decision in relation to records held. Furthermore, the response implies that it is acceptable for public bodies to make no decision within the statutory period in order to facilitate a ''deemed refusal'' and a subsequent right of review to the Commissioner. While it is, of course, open to public bodies to take legal advice in respect of their functions under the FOI Act, the Act lays down very specific requirements in relation to decision makers and the exercise of their functions and these must be adhered to whether or not proceedings are in existence.

This Office drew the defects in the original response to the attention of the Service Provider  who subsequently scheduled the records in considerable detail; the Service Provider  released some records citing exemptions it had applied to the withheld records. I note, however, that this took place in April 2008 whereas the FOI request was made in August 2007.

Submissions

.

Findings

Before dealing with the exemption claimed by the Service Provider, I wish to make the point that, while the Commissioner is required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that she take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record.  This means that I am somewhat constrained in describing the content of the records in this case.

I also draw attention to the provisions of section 34(12)(b) of the FOI Act which states 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 Service Provider to satisfy me that its decision is justified.

Finally, I wish to make it clear that the Commissioner's role in conducting a review under section 34 of the FOI Act is to carry out a de novo review. This is in accordance with the High Court judgment of Mr Justice Ó Caoimh in the case of The Minister for Education and Science v Information Commissioner [2001] IEHC 116. It was also accepted and elaborated on by Mr Justice Quirke in his judgment in the case of The National Maternity Hospital and The Information Commissioner [2005]No.49 MCA where he (Mr Justice Quirke) noted:

"The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]"

Pre-Commencement records

I note from my examination of the records that many of them were created prior to 21 October 1999 - the date from which the Service Provider was prescribed as a public body for FOI purposes under S.I. No. 329 of 1999 - Freedom of Information Act, 1997 (Prescribed Bodies) Regulations, 1999. Many of the pre- commencement records, (especially those involving correspondence between the Service Provider and its legal advisers), have been excluded from consideration as a result of the narrowing of the scope of the request by the Applicant as referred to above. However, there is a substantial number of records remaining within the scope of this review which, at the outset, fall to be examined by reference to whether or not there is a potential right of access to them.

Under Section 6(5) of the Act, however, there are two separate grounds on which (subject to the other provisions of the FOI Act) a right of access to pre-commencement records arises. These two grounds are:

• where it can be shown that access is necessary or expedient in order to understand a record created after the commencement date [section 6(5)(a)], or
• where the pre-commencement records relate to personal information relating to the person seeking access to them [section 6(5)(b)].

Section 6(5)(a)

As explained to the Applicant by Ms McCulloch in her letter of 24 July 2009, a high level of proof is required in order to support a claim based on section 6(5)(a). It would be necessary for the Applicant to point to a particular document or record, created after the commencement date, and show why he could not understand it without having access to another (pre-commencement) document. 

The Applicant's attention was drawn to a number of previous published decisions of this Office dealing with the application of section 6(5)(a) - principally Case Number 98117 (Mr. ABE and the Department of the Marine and Natural Resources) and Case Number 98169 (Mrs. ABY and the Department of Education and Science).  These decisions set out a clear approach to interpreting the phrase "necessary or expedient in order to understand ..." which I adopt here. I take the view that this provision is directed, not at the question of whether a record can be understood, in a literal sense, without reference to earlier records, but at whether its substance (or gist or subject matter) can be understood. These decisions make it clear that the fact that a document does not contain all the information that a reader might wish to have does not mean that the substance of a document cannot be understood.  In these decisions, the word "expedient" is defined as "fit, proper or suitable to the circumstances of the case".

The Applicant has not identified any document, created since 21 October 1999, the understanding of which requires that he has access to the pre-commencement records which are the subject of this review. Instead, the Applicant argues that it was impossible for him to understand the gist or subject matter of the withheld records because he does not know the content of these. The Applicant also points out that the pre-commencement records in Schedule 4 must relate to him and therefore should be released. This argument is more properly addressed under section 6(5)(b) below.

I see no basis for concluding that access to the pre-commencement records is necessary or expedient to understand any particular post-commencement record. Accordingly, I find that section 6(5)(a) does not apply to the records concerned.

Section 6(5)(b)

A right of access to pre-commencement records exists where those records relate to personal information, as defined in the FOI Act, about the requester. In his judgment in the case H. (E.) v Information Commissioner [2001] 1EHC 182 ,O'Neill J. set out the approach to be taken in construing the term "relate to personal information" as contained in section 6(5)(b) of the FOI Act. He noted that it is "absolutely clear from the use of the phrase 'relates to' that a document need not itself contain 'personal information' about the requester". Where a doubt or ambiguity exists, as to the connection of the record to the requester, a consideration of factors such as the circumstances in which the record was created, the purpose for which the record was created and whether it was created with the affairs of a particular individual in mind, may, inter alia, assist in determining

            “... 'whether there is a sufficiently substantial link between the requester's personal information (as defined in the Act) and the record in question'. I do not think one should go further than this in formulating a test in this regard."

Mr Justice O'Neill held that records containing an express reference to the requester, however insubstantial or trivial, clearly relate to personal information about the requester.  Further, he held that where a record contains no express reference to the requester a substantial link will be established if the record relates to something in which the requester has a substantial interest. In this case, I think it is clear from the nature of the records and the circumstances of their creation that many of them could be taken to relate to the Applicant's personal information and that, therefore, he has a potential right of access to the records created before the commencement of the Act. There are some records - many  in Schedule 5 in particular - which relate wholly to a client of the Service Provider  other than the Applicant and the content of which, prima facie, does not appear to be linked to the Applicant in that they were not created with him in mind. However, given the fact that the Applicant had, apparently, made allegations concerning some of the individuals to whom the records relate and thus, such records could be held to relate to something in which the Applicant has a substantial interest, I have decided not to exclude these from consideration.

Section 22(1)(a) - Legal Professional Privilege

As the Service Provider  is claiming the legal professional privilege exemption in respect of some of the records, it is appropriate to examine this first because, if the records qualify for this mandatory exemption, it will be unnecessary to look at the application of other exemptions.

Section 22(1)(a) of the FOI Act 1997 provides that a request for a record shall be refused if it "would be exempt from production in proceedings in a court on the ground of legal professional privilege".  This is a mandatory provision and, unlike certain other exemptions in the FOI Act, it is not subject to a consideration of the public interest. It is well established that legal professional privilege preserves the confidentiality of two types of communication:

1. confidential communications between a client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice, and
2. the confidential communications of a client and a legal adviser, or a legal adviser and a third party, or between a client and a third party, the dominant purpose of which communications is preparation for contemplated/pending litigation.

The Applicant says that some of the withheld records do not in fact qualify for legal professional privilege as asserted by the Service Provider. However, the Applicant does not state why he believes this to be so. Having examined the records, I consider that the following records fall to be considered under section 22(1)(a): Schedule 4: records 18, 20.

The Applicant is the plaintiff in litigation commenced against the Service Provider on or about December 2001. The Service Provider had reason to believe that such litigation was threatened from the time of the making of the complaint and the intention to take proceedings was confirmed  by the Applicant's solicitors in June 1998 shortly after the creation of the two records above. The records are clearly confidential communications between the public body and a third party, the dominant purpose of which is preparation for the pending litigation. In all the circumstances, I am satisfied that the Service Provider is justified in relying on section 22(1)(a) of the FOI Act in respect of records 18 and 20 of Schedule 4 and I find accordingly. Therefore, I will not consider those two records further in this decision.

Section 28 - Personal Information

The Service Provider refused access to the records identified below (of those remaining within the scope of the review) on the basis of section 28 of the FOI Act:

Some of the above records contain personal information relating to other clients of the Service Provider either on its own or linked to personal information relating to the Applicant. There is also some information relating to staff members of the public body which would constitute those staff members' personal information. In the case of staff members of public bodies, the definition of "personal information" normally excludes information disclosing the name of the individual and the office he or she holds, the functions of that office, the terms on which it is held or anything recorded by an individual in the course of and for the purpose of the performance of his or her functions - [paragraph (I) of section 2 of the FOI Act]. However, much of the information is either about the staff members in the context of the serious accusations against them rather than information for the purposes of performing their functions or is  "information relating to the individual in a record falling within section 6(6)(a)", that is, a personnel record. Such material is considered to fall within the definition of personal information.

Section 28(1) provides that:

"Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information ...".

The provision at section 28(5B) of the FOI Act applies to joint personal information which is found in those records which concern the personal information of the Applicant inextricably linked to that of other individuals:

"Notwithstanding paragraph (a) of subsection (2), a head shall, subject to subsections (b) to (e) of that subsection and subsections (5) and (6), refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester. "

Before examining whether section 28 applies to exempt the above records from release, I draw attention to the Commissioner's approach to the granting of access to parts of records.  Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record.  Section 13 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 and I have borne this in mind in considering those records which include material which is not the personal information of  individuals other than the Applicant and which, if released, would not identify those whose privacy is  protected under the FOI Act.  However, the Commissioner takes the view (with which I agree) that neither the definition of a record nor the provisions of section 13 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. The extent to which parts of records can be released will often depend upon the extent to which personal information of third parties can be separated from other information in a record.

There is a number of exceptions to the section 28(1) and section 28(5B) provisions of the FOI Act.

Section 28(2)(b) - (e)

Section 28(2)(b) to (e) provides as follows:

"28(2)  Subsection (1) does not apply if   .....

(b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester,

(c) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,

(d) the information was given to the public body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or

(e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual,"

It is quite clear that paragraph (b) does not apply in this case as the individuals to whom the information relates have not consented to the release of the information. I should make it clear that, given the nature of the records and the degree of involvement of the third parties, I consider it neither appropriate nor practicable that such consent should be sought.

No case has been made that paragraphs (c), (d) or (e) apply in this case and I am satisfied that they do not.

Section 28(5)

I am satisfied that the only other relevant provision of section 28 to be considered is subsection (5) which provides as follows:

(5)  Where, as respects a request under section 7 the grant of which would, but for this        subsection, fall to be refused under subsection (1),

in the opinion of the head concerned, on balance

(a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or

 (b) the grant of the request would benefit the individual aforesaid, the head may, subject to section 29, grant the request."

In my view, there is nothing to suggest that release of the records would benefit the individuals whose personal information is included in the records and who have not consented to its release. I must now consider whether the request falls to be granted under section 28(5)(a).

The Public Interest - section 28(5)(a)

In previous decisions, the Commissioner has considered the application of section 28(5)(a) in some detail and has found that the public interest in protecting the right to privacy is very strong. The Applicant argues in his letter of 10 August 2009 that a person who is of unsound mind requires a lot of care and attention and people who are placed in employment positions involving children who have special needs, need to be adequately vetted. He said that his case involves instances of sexual abuse and that it is a matter of public interest that this does not happen to another child in residential care again. The Applicant also said that there is a public interest in knowing whether the functions of the Service Provider and the enquiry panel were properly discharged. These are valid public interest arguments summarised in the following factors which must be weighed against the public interest in maintaining the rights of privacy of the individuals involved: 

• the public interest in members of the public knowing how a public body performs its functions and, as in this case, how a public body acts on foot of complaints or allegations received by it;
• the public interest in ensuring that public bodies act fairly and professionally in all its actions including its selection and training of staff;
• the public interest in members of the public knowing that information held by public bodies about them is accurate and
• the public interest in ensuring that the needs and rights of vulnerable members of society are fulfilled and upheld.

On the other side, there is a very strong public interest in upholding the right to privacy - something acknowledged in the Long Title to the FOI Act which provides for release of information, under the Act, in a manner which is "consistent with the public interest and the right to privacy". I note that the Applicant cites the High Court case of The National Maternity Hospital and The Information Commissioner [2005]No.49 MCA in support of his argument that the right of privacy is not absolute and that there are other constitutional rights to be taken account of here. I agree that this is so but it does not follow that the Applicant's rights can be taken to supersede the rights to privacy of other individuals and I can find nothing in Judge Quirke's judgment to support the setting aside of the privacy rights of others in circumstances similar to the Applicant's.  In considering where to strike the balance between the public interest in releasing records and the Act's strong support for the right to privacy, it is reasonable to have regard to related public interest considerations which favour the withholding of the particular records. In this case, I consider the following considerations are relevant:  

• the public interest in members of the public (clients and families of clients of services such as the Service Provider in particular) being able to communicate in confidence with public bodies and without fear of disclosure in relation to personal or sensitive matters;
• the public interest in public bodies being enabled to perform their functions effectively particularly where the welfare of vulnerable persons is involved.

I attach significant weight to the fact that while some of the records in this case relate to sensitive matters closely linked to the Applicant; the nature of the request is so broad as to cover also personal information of other individuals which has no direct linkage to the Applicant's allegations, the investigation of these or to his care in the Service Provider.  I also attach weight to the fact that disclosure of certain information relating to clients and staff of the Service Provider would constitute a severe invasion of their privacy. The fact that some of those persons have been accused of wrongdoing does not take away from their right to privacy, their right to their good name and to the presumption of innocence until proven guilty.

In weighing up the relative strengths of the public interest factors, an attempt must be made to measure the actual benefit to the Applicant which would result from release of the records. In doing so, I have taken into account that the Applicant has already been given a considerable amount of information in relation to the matters the subject of the records. I have also considered whether release of the records within the scope of this review would add significantly to the Applicant's understanding of the actions of the public body in this case.  I am satisfied that the extent to which the Applicant's understanding of the Service Provider's actions in this case would be enhanced by release of further records would not warrant the corresponding degree of invasion of privacy of the third parties involved. In my view, the substance of the information relating to the Service Provider's actions in relation to the Applicant, is known to him. Much of what is requested discloses nothing at all in relation to how the Service Provider discharged its functions, including those in relation to screening of staff to which the Applicant draws particular attention.

I understand that the Applicant has initiated legal proceedings in relation to the matters the subject of the records. I am satisfied that if any of the information in the withheld records is necessary to enable the case to be put fully and fairly before a court in any proceedings which might be taken, procedures exist within the court system to enable the records to be produced in full if the court decides that this is appropriate.  In weighing the public interest considerations in this case, I am mindful of the fact that there is nothing in the FOI Act which qualifies or restricts the use by requesters of information released to them under the FOI Act. Release under FOI is considered to be "release to the world". This contrasts with the position whereby records are provided on foot of a court order for discovery or, for example, where child care and certain other cases are heard by the courts.  Statutory provisions governing the conduct of such cases allow for the proceedings to be held otherwise than in public or for the exclusion from court of all persons except those directly concerned with the case.  There is also statutory provision enabling the identities of the parties to be protected and for the prohibition of publication or broadcast of certain matters. This type of provision reflects a strong public interest in the protection of privacy.

Where the records do disclose material relevant to the carrying out of the Service Provider's functions and how it dealt with the allegations and investigation and where it is practicable, having regard to the provisions of section 13 of the Act outlined above, to remove personal information from the copies, I consider that the public interest in release of the records would be satisfied by release of that material. Subject to examining the records in the context of other exemptions cited by the public body, I propose to direct the partial release of certain records.

In summary, it is my finding that the Service Provider is justified in its refusal of access to all of the records in Schedules 2, 3 and 5 and parts of records in Schedules 4 and 7 under section 28 of the Act and that, on balance, the public interest in upholding the right to privacy outweighs the other public interest factors in this case.

Section 21

The Service Provider refused access to the following records under section 21(1)(a) and/or section 21(1)(b) of the FOI Act:

Schedule 4: 15-17,  67, 77, 86, 89, 95, 108, 144 and 153-154

Schedule 6: 1

Schedule 7:  5, 7, 11-12, 14-17, 19-20, 22 and  25-27.

I have already found the personal information of third parties in these records to be exempt under section 28 of the FOI Act. As explained above, I must now consider whether the section 21 exemption is justified in relation to the non-personal information and, if not, whether it is feasible to separate these parts out from the records without rendering them misleading.

In its decision, the Service Provider said that the records at issue, including the report of the enquiry panel (Schedule 6) contain information on the conduct of an investigation. the Service Provider stressed the confidentiality of the process and told this Office that, in or around May 19XX an enquiry team was established to investigate allegations made by the Applicant's family. It also said that the report made recommendations to the Managing Director of the Service Provider after consideration of reports by staff members concerning particular events, reports on the Applicant's file, the personal file of a staff member accused of abuse and a psychiatric report assessing the Applicant's complaint. It is the view of the Service Provider that the receipt of these reports and the proper consideration of them is an essential aspect of the methods and procedures employed for the conduct of investigations of this type which are an integral part of the management functions and in particular the industrial relations and staff management functions of the Service Provider. 

Section 21(1)(a) provides that a request for access to a record may be refused where its release could reasonably be expected to "prejudice the effectiveness of tests, examinations, investigations, inquiries, or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof".

Section 21(1)(b) provides that a request for access to a record may be refused where its release could reasonably be expected to "have a significant, adverse effect on the performance by a public body of any of its functions relating to management (including industrial relations and management of its staff)".

Both provisions are subject to a public interest test [section 21(2)].

In the case of Sunday Times Newspaper & Others and the Department of Education and Science (Case No. 98104), the previous Information Commissioner, Mr Kevin Murphy, outlined his approach to the application of section 21. I agree with that approach. In arriving at a decision to claim a section 21 exemption, a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur.

In the case of a claim under section 21(1)(b), the establishment of "significant adverse effect" requires stronger evidence of detriment than the "prejudice" standard of section 21(1)(a). When invoking section 21(1)(b) the public body must make an assessment of the degree of importance or significance attaching to the adverse effect claimed. Not only must the harm reasonably be expected but it must also be expected that the harm will be of a more significant nature than that required under section 21(1)(a).

It is appropriate here to refer to the Supreme Court judgment in Sheedy v Information Commissioner [2005] IESC 35 in which Mr. Justice Kearns stated, in relation to section 21(1) that "the onus to produce evidence of prejudice fell on the Department and in the absence of same the Commissioner was entitled, under s. 34 of the Act of 1997, to hold against the Department. A mere assertion of an expectation [of prejudice] ... could never constitute sufficient evidence in this regard...". In the present context, it is clear that the Service Provider must show some evidence of prejudice if its reliance on section 21(1)(a) or (b) is to be justified.

Section 21(1)(a)

I accept that the process of having the Applicant's complaints investigated can properly be described as an investigation or enquiry for the purposes of section 21(1)(a).

I accept that there are difficulties in conducting inquiries of this type.  However, I take the view that any public body, including the Service Provider is in a position to expect and require its employees to provide relevant information in a context in which that public body is considering a complaint made against it. In fairness to the Service Provider, it has not asserted that non-cooperation would occur as a consequence of release of the records under FOI. However, it does say that the information was provided in confidence. The argument that such information will be given by staff only on the basis of an assurance of confidentiality, and could be withheld in the absence of such an assurance, is not tenable in my view. The situation is, of course, different where the information is being given to the enquiry by persons who are not employees, or contractors for services of the public body.  In the interests of clarity, I should say here that the participation as part of their functions of the Service Provider and HSE or former health board staff or contractors or other public servants in the investigation and enquiry process would not normally be protected under FOI and I see no reason why those parts of the records cannot be released where it is possible to do this without rendering the resultant record misleading. As the Commissioner has pointed out in several previous decisions, public bodies should exercise caution with regard to the giving of "assurances" of confidentiality in the light of the provisions of the FOI Act.

For section 21(1)(a) to apply, the decision maker must also form the opinion that disclosure could reasonably be expected to lead to the harm identified. The Applicant is aware from records already released and from his dealings with the Service Provider of the identities of at least some of the staff and of their involvement in the process.  I note also that record 1 of Schedule 7 which the Service Provider has already released discloses the composition and terms of reference of the enquiry team. The enquiry has been completed and the Service Provider has not pointed to anything in the procedures or methods employed in 19XX that would give rise to prejudice or harm if disclosed. I am not satisfied that it is reasonable to expect that the release of further parts of the records to the Applicant whose allegations gave rise to the process of enquiry would prejudice the Service Provider's ability to obtain statements and cooperation from its staff members and other public servants and thus prejudice its capacity to conduct inquiries of the type at issue in future cases. 

On the basis of my examination of the affected records, I find that section 21(1)(a) does not apply to exempt the records.

Section 21(1)(b)

It is important to remember that for section 21(1)(b) to apply there must be a reasonable expectation that release of the records in question will have a significant, adverse effect on the performance of management functions by the public body. It is for the Service Provider to establish that it has such a reasonable expectation in this case. It is clear from the submissions that the function in relation to management that the Service Provider has in mind is primarily the management of its staff and its ability to investigate complaints. Of its nature, the investigation involved substantial amounts of information relating to the personal lives of certain of the staff and others which is , I believe, protected from release under section 28 of the Act.  As explained above, where I have identified information which is the personal information of staff or clients involved, I have found that these parts of the records should be withheld. However, the Service Provider has not convinced me that the release of other parts of the records in respect of which section 21 is cited would result in the significant adverse effect on its management functions necessary in order to justify the section 21(1)(b) exemption.

Having regard to the requirements of section 34(12), the content of these records (apart from the elements of personal information), the circumstances of their creation and the extent to which they relate to issues of which the Applicant is already aware, I find that the Service Provider is not entitled to refuse access to the parts of the records concerned under section 21(1)(a) or (b) of the FOI Act. However, in the case of some records, including the enquiry report itself (Schedule 6; record 1) and other reports (e.g. Schedule 4 - records 108, 145 and Schedule 7- records 7, 16), I have not found it possible to direct release of any part because the extent of the third party personal information which I have found to be exempt under section 28 is such that the record remaining after the necessary redactions had been carried out would be misleading (section 13 of the FOI Act refers).

Public Interest

Even if I was of the opinion that the Service Provider had justified reliance on the section 21(1)(a) and section 21(1)(b) exemptions, it would be necessary for me to address the question of whether the public interest would, on balance, be better served by granting the request than it would by refusing the request. I propose to do this despite my findings above.  

Section 21(2) of the FOI Act provides:

"Subsection (1) does not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request".

To apply section 21(2), it is necessary to identify the various public interests served by the release of the particular record as well as those served by the withholding of that record. Relative weights must then be applied to these conflicting public interests and a judgement made as to which set of public interests outweighs the other.

In considering the public interest factors which favour withholding the records, I have taken the following into account, including the factors considered by the Service Provider:

• the public interest in staff, clients and members of the public being able to communicate their concerns and complaints to public bodies
• the public interest in public bodies being enabled to perform their management functions effectively and efficiently particularly in relation to issues relating to the investigation of allegations
• the public interest in maintaining the privacy rights of individuals,

I believe the following public interest factors in favour of the release of the records are relevant in this case:

• the public interest in individuals being able to understand the reasons for courses of action taken by a public body;
• the public interest in members of the public knowing how a public body performs its functions, including the conduct of investigations into complaints, and being able to form an opinion as to whether those functions are being properly discharged;
• the public interest in increasing the openness and transparency of the process of investigation of complaints by public bodies;
• the public interest in ensuring that public bodies act fairly and professionally in all its actions;
• the public interest in members of the public knowing that information held by public bodies about them is accurate;
• the public interest in the importance of requesters exercising their rights under the FOI Act.

I consider that investigations into allegations of abuse are matters of real concern to the public as well as to the Applicant. There is a significant public interest in ensuring that there is openness and transparency as well as thoroughness in the handling of complaints by public bodies and in relation to their interaction with other State agencies in this area.  The withholding of information, including outcomes and recommendations, can adversely affect public trust in the ability of public bodies to effectively investigate and deal with complaints. I stress that no inference that the investigation in this instance was anything but thoroughly and properly conducted is intended since this Office's role does not extend to examining the nature of the investigation or its conclusions.

Having considered the matter carefully and taking into account the extent to which it is possible to redact personal information relating to third parties, I find that the public interest would, on balance, be better served by granting than by refusing to grant the request in respect of the records detailed in the Appendix which forms part of this decision.

Section 26 - Confidence

The Service Provider cited section 26 of the FOI Act in relation to some of the withheld records and submitted that information had been given to it in confidence. It said that the disclosure of such information would be likely to prejudice the giving to it of further similar information which is important to it. the Service Provider made it clear that it was not applying this exemption to information given to it by directors, staff members or service providers which I take to be a reference to the provisions of section 26(2) of the Act. Given that I have dealt with the information given by or about clients and other individuals and by staff members (outside of those non-personal records prepared in the course of their normal duties) under section 28 of the Act and found those parts of the records to be exempt and having regard to the fact that the Service Provider has not cited the section 26 exemption in any instance without also citing the section 28 exemption, it is not necessary to address this in any further detail.

Section 10(1)(a)

The Service Provider refused access to records at Schedule number 1 on the basis that the records do not exist. Section 10(1)(a) of the FOI Act provides that:

"A head to whom a request under section 7 is made may refuse to grant the request if

(a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken, ......"

The Commissioner's role in cases such as this is to review the decision of the public body and to decide whether that decision was justified. This means that the Commissioner must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for the records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for the records were reasonable. The Commissioner's understanding of her role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A.)

The Service Provider has stated that, except for the Applicant's own case, there is no record of any complaint of sexual type assault upon patients in its care in the last ten years. I cannot see any basis for not accepting that statement of the Service Provider and, in the circumstances, it would be futile to require searches to be carried out in respect of records that are not held. I have taken into account that the existing records disclose that the current Managing Director of the Service Provider, held that post for at least ten years prior to the making of the FOI request and so would be expected to be in a position to recall or establish whether there were any other complaints of sexual assault over the ten year period.   I find, in the circumstances, that the decision of the Service Provider to refuse the request under section 10(1)(a) of the FOI Act is justified.

Summary of Findings

Having found that certain of the records under review are exempt under section 22(1)(a) or under section 28 of the FOI Act but that parts of the records are not exempt under section 21 of the Act or otherwise, I set out the effects of those findings in the Appendix to this decision.

OIC Case Number 080025.   Appendix 1 - Records for release

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997 as amended, I hereby vary the decision of the Service Provider in relation to the Applicant's request. I direct that the records identified in Appendix 1 be released. Otherwise, I affirm the decision of the Service Provider to withhold the other records remaining within the scope of this review.

Right of Appeal

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 a review must be initiated not later than eight weeks from the date of this letter.

Elizabeth Dolan

Senior Investigator

06 October 2009