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Whether the HSE was justified in its decision to refuse a request for access a record relating to the Helping Hands Adoption Mediation Agency in accordance with section 27(1) of the FOI Act.

Review Application to the Information Commissioner under the Freedom of Information Acts 1997 & 2003 (the FOI Act)

Background

On 6 December 2012 the HSE received an FOI request from the applicant for copies of correspondence between the Department of Children and Youth Affairs and the HSE concerning the Helping Hands Adoption Mediation Agency ("Helping Hands"), and correspondence from the HSE to and from the Adoption Authority concerning Helping Hands. Under section 41 of the FOI Act, non-reply to a request is deemed to be a refusal thereby allowing a requester to proceed to internal review at no charge. Therefore, having received no decision in relation to his request, the applicant wrote to the HSE on 21 January 2013 to request an internal review as he had not received a decision by the due date and this was then accepted as an application for an internal review.

On 11 February 2013, the HSE wrote to the applicant with its decision to refuse access to one record it identified as coming within the scope of the request and on 13 February 2013, the applicant applied to the Information Commissioner for a review of the HSE's decision. I note that Ms Rachel Dunn, Investigator, wrote to the HSE setting out her preliminary views on the matter and inviting the HSE to submit any further comments that it considered relevant to the review. Ms Dunn also wrote to both Helping Hands and the Adoption Authority of Ireland as affected third parties and indicated that this Office would be happy to consider any submissions from them in relation to this matter if they were submitted within a specified period. This Office did not receive any further contact from the HSE or the Adoption Authority of Ireland. However, a solicitor acting for Helping Hands contacted this Office with general queries regarding this review and Ms Dunn responded in detail to his correspondence on 16 July and 25 July 2013 and also spoke to him by telephone on 25 July. By letter dated 29 July 2013, the solicitor made a submission on behalf of Helping Hands arguing against the release of the record.

Accordingly, 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 wording of the original request, the submissions which were provided by the HSE, the applicant and the legal representatives of Helping Hands. I have also carefully examined the record which has been provided to this Office by the HSE for the purposes of this review. While I do not intend to address every comment which each party has made in their submissions, I have taken them all into account in conducting this review.

Scope of the Review

For the purposes of this review, any references to access to the "record" should be understood as being references to a letter dated 4 November 2012 from the Adoption Authority of Ireland to the HSE and the associated redacted report of a review by Crowleys DFK of the financial statements of Helping Hands.

Analysis and Findings

The HSE contends that the record at issue is exempt from release pursuant to the provisions of section 27(1)(c) of the FOI Act. That section provides that a request shall be refused if the record concerned contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. According to the HSE, at the time it was handling the internal review, Helping Hands was in negotiation with the HSE regarding its request for funding. The HSE expressed concerns that if this information were to be released at that time, then

(1) the requester would have had access to information that was not provided to Helping Hands during their negotiations over funding, and
(2) the information was of a commercially sensitive nature and would be of interest to competitors of Helping Hands before the negotiations over funding had been finalised.

During the course of the review, the HSE confirmed to this Office that the record in question has since been provided in full to Helping Hands outside the FOI process. Therefore, as Helping Hands has now been given the record the argument at point (1) above is no longer relevant to this review.

In relation to the concern outlined at point (2) above, the HSE did not put forward any specific arguments as to how the release of the record could give rise to harm which section 27(1)(c) seeks to protect. While the HSE stated that the information at issue was of a commercially sensitive nature which was considered to be of huge interest to competitors of Helping Hands at a particularly sensitive time, given that negotiations had not concluded, it did not explain how the release of that information might prejudice the conduct or outcome of those negotiations. Accordingly, and having regard to the provisions of section 34(12)(b) of the FOI Act, which places the onus on the public body of satisfying this Office that its decision to refuse access is justified, I find that section 27(1)(c) does not apply.

Nevertheless, given the Department's argument that the information at issue is commercially sensitive, and given the submission made on behalf of Helping Hands, I have also considered whether the provisions of section 27(1)(b) might apply. That section provides that a request shall be refused if the record concerned 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.

The record in question contains a redacted report of a review conducted by Crowleys DFK of the financial statements of Helping Hands and relates to the years 2007 to 2010. It is clear that the report was redacted by the Adoption Authority prior to its submission to the HSE and it is this redacted version of the report which is the subject of this review. The redacted report contains details of the manner in which Helping Hands treated HSE funding for accounting purposes for the periods in question. The arguments made on behalf of Helping Hands for withholding access to the record appear to be based on the contents of the redacted portions of the review report. Accordingly, such arguments are not relevant to my consideration of the applicability of section 27(1)(b) to the redacted record. While I accept that the redacted record contains financial information, it is not clear to me that the release of such information could give rise to the harms identified in section 27(1)(b), given, in particular, the period to which the information relates. Therefore, having regard to the provisions of section 34(12)(b), I find that section 27(1)(b) does not apply.

For the sake of completeness, I should add that even if I were to find section 27(1)(b) or 27(1)(c) to apply, the possibility of release of this record in the public interest under section 27(3) of the FOI Act would remain to be considered. Section 27(3) provides that a record to which section 27(1) is found to apply may still be released if the public interest would, on balance, be better served by granting than refusing to grant the request. There is a clear public interest in optimising openness, transparency and accountability in matters which relate, directly or indirectly, to the use of public funds. On the other hand I accept that there is a public interest in protecting against the harms outlined in section 27. However, given the nature of the information at issue in this case and the fact that the financial information contained in the record relates to 2010 and before, I am satisfied that the public interest would, on balance, be better served by the release of the record at issue.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the HSE in this case and direct that the record at issue should be released to the applicant.

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 an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator
7 August 2013