Whether the HSE was justified in refusing to grant access to records containing details of fill rates and placements of staff by recruitment agencies on the HSE Agency Framework (the framework) on the basis of sections 35 and 36 of the FOI Act

21 December 2018 

Background

The background to this case is complicated. My decision covers three separate requests submitted by the applicant to the HSE for access to records relating to the placement of agency staff. As the parties to the reviews are identical, and given that all three reviews relate to a refusal of access to similar records by the HSE under sections 35(1)(a) (confidential information) and 36(1) (commercially sensitive information) of the FOI Act, I have decided to consider the applications together.

The applicant's initial request was the subject of applications for review by two of the third party agencies on the framework (Case Nos. 180039, 180046 and 180057). This Office annulled the HSE's decisions to release the records in both cases in February 2018, as it had not complied with the provisions of section 38 of the Act, and remitted the matter back to the HSE. It went on to conduct a new, first instance decision-making process on the applicant's request. This is the decision which is under review in relation to Case 180162.

The HSE released records relating to the fill rate of framework agencies with its original decision in Case 180163. This decision was annulled in its internal review, which purported to refuse access to all relevant records. The HSE also refused to grant access to the records sought in Case 180253. It is its internal review decisions to refuse access to the records which is under review in both cases.

The requests were as follows:

• Case 180162: In December 2017, the applicant sought access to the figures submitted by recruitment agencies on the framework relating to the placements made by each agency in September and October 2017. 
• Case 180163: In January 2018, the applicant sought access to the figures submitted by each recruitment agency on the framework relating to the placements made by each agency in November and December 2017. He also sought access to the fill rate reports submitted by the Tier 1 agencies on the framework for the same period. 
• Case 180253:In March 2018, the applicant sought access to the figures submitted by each recruitment agency on the framework relating to the placements made by each agency in the first eight weeks of 2018, as well as the fill rate report submitted by each Tier 1 agency for the same period. 

The HSE initially refused the first two requests under section 36(1) of the FOI Act, although it did not explain its basis for doing so. It refused the third request on the basis of sections 35 and 36. The applicant sought an internal review of the first two decisions on 26 March 2018, and the third on 9 April 2018. The HSE refused to release records in all three cases, citing sections 35 and 36. The applicant applied to this office for a review of the HSE's decisions on 24 April 2018 (180162 and 180163) and 29 June 2018 (180253).

During the course of these reviews, it became clear that while the HSE had contacted the third party recruitment agencies (the agencies) in respect of an earlier request, it had not consulted with the parties in relation to all three of the current requests. It also became clear that not all of the agencies had objected to the release of all of the information concerned in respect of the original request. In the interest of fair procedures, this Office contacted the agencies and informed them of all three requests and invited submissions. Nine companies were contacted, of which six replied. Three of the agencies who responded to this Office objected to the release of the information concerned in full. Of the remaining three agencies who replied, two objected to the release of most, but not all, of the information sought, and one had no objections to the records being released at all.

In July 2018, the applicant contacted the HSE and requested statistical information concerning agency staff usage to include the following: agency name, hospital name, profession, grade and total sum of hours provided per week. The HSE has informed this Office that, in response to that contact, it had released some records outside of FOI to the applicant. These contained information under the following headings: Area/Hospital group, location name, grade, sum of hours (for each relevant week) and overall total sum of hours. My understanding is that it would be willing to grant access to the same level of detail in relation to the current FOI requests. The HSE refused to release the individual agency names together with the other information, as it stated that it would be commercially sensitive.

The applicant has indicated to this Office that he is willing to accept less information than originally sought if required. However, he has made it clear that he is still seeking access to the following information in the records concerned which the HSE is not willing to release: agency name, client name, lot area, address, county, category [of worker], speciality and total amount per week including VAT. The applicant did not specify whether he also sought access to the remaining columns in the records which include total sum of pay to employee, total basic pay, percentage and total sum of agency fee and various payroll and VAT figures.

Having completed my review in all three cases, I consider that these reviews should now be brought to a close by the issue of a formal, binding decision.

In conducting my reviews, I have had regard to the HSE's decisions on the requests at issue and its communications with this Office, and to the applicant-�s communications with this Office and with the HSE. I have also had regard to the submissions made to this Office by a number of the agencies who had submitted the records at issue to the HSE, as well as to the contents of the records concerned.

Scope of Review

This review is solely concerned with whether the HSE was justified in its decision to refuse to grant access to the records sought on the basis of sections 35 and 36 of the FOI Act.

Preliminary Matters

It is important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the HSE to satisfy this Office that its decision to refuse access to the records sought was justified.

In relation to the HSE's submissions, I note that it stated that the applicant is employed by one of the agencies on the framework. I wish to make it clear that this type of argument goes to the motive and identity of the requester and I cannot cannot give it any weight in this case. As the HSE ought to be aware, section 13(4) of the FOI Act provides that subject to the Act, decision makers must disregard any reason given or suspected for the request. Therefore, I will not take account of any reasons why the applicant might be seeking the information at issue, other than in terms of the public interest.

In relation to who makes an FOI request, it is important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.

Analysis and Findings

The HSE refused to grant access to the records sought on the basis of sections 35 and 36 of the FOI Act. Having carefully examined the records in question, it appears to me that section 36 is of most relevance. Accordingly, I will consider the applicability of section 36 to the information at issue in the first instance.

Section 36 - Commercially Sensitive Information

While the HSE did not indicate which subsection of section 36 it was relying on in its decisions, its submission to this Office appeared to focus on section 36(1)(b), which provides, insofar as is relevant: 

"Subject to subsection (2), a head shall refuse to grant an FOI request if the record concerned contains -�

... (b) 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,".

Section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than refusing the request (section 36(3) refers). 

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 that disclosure of the information could reasonably be expected to result in material financial loss or gain. I take the view that the test to be applied in this regard is whether the decision maker's expectation is reasonable. The harm test in the second part of subsection (1)(b) is whether disclosure of the information "could prejudice thecompetitive position" of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard to meet the test of "could reasonably be expected to" in the first part of subsection 36(1)(b). 

The records at issue can be divided into two types:

1. Weekly reports - which include the agency name, area, the hospital or group, the client name, the payroll amount, hours worked, the amount paid to each employee, the percentage and monetary amount of the agency fee and the grade, grade code and speciality of each staff member concerned.
2. Fill rate reports - which include the grades/numbers of staff that were requested by the hospital, the number(s) that were provided by the relevant agency and the reason(s) for any shortfalls.

The HSE
The HSE stated that the records at issue relate to nine agencies which are part of a multi-supplier Agency Framework from which the HSE procures various grades of medical personnel to fill short term/locum cover positions. It also stated that only a limited number of agencies can compete in the relevant EU tender process for this framework, which takes place every four years. It was of the view that disclosure of the records requested could reasonably be expected to be harmful to the agencies, that it would result in a material financial loss to them and that it could prejudice their competitive position in the conduct of their business. In essence, the HSE is of the view that release of details of the number of staff provided, the hourly and total pay paid to employees and the level and amount of Agency fees would reveal details of each company's business which could give a competitor an insight into how each business performs and meets its obligations under the framework, which could be leveraged by competitors in future tender processes. 

The agencies
Copies of the submissions made to the HSE by a number of companies on the framework were provided to this Office by the HSE for the purposes of this review. This Office also contacted the parties concerned in respect of all three cases. Both sets of submissions have been considered in this review. As noted above, one agency did not object to the release of the information sought; another had no objection to the release of the total hours of the staff it provided by Hospital/Region/Lot or by discipline, and a third was willing to agree to the release of the total hours and spend relating to its agency, as well as its own commission rate.

However, other agencies objected to the release of the information in full and made various arguments in this regard. In essence, they stated that the records contained detailed information relating to the full range of each agency's activities by site. They considered that release would potentially reveal personal information relating to medical staff and/or to vulnerable patients, as well as details relating to hospitals and sites not under the control of the HSE. Most of the agencies said that the medical staff supplied by them are highly skilled and highly sought after in a very competitive international market. They were concerned that the release of the information sought could allow competitors (both national and international) to identify and headhunt particular staff. Some agencies also contended that the release of such detailed financial information could place competitors in a commercially advantageous position in the next tender competition. 

One agency drew a comparison withCase No. 170377onwww.oic.iewhere the Commissioner found that the release of specific details and individual costs was not always warranted, for instance, where it would be of benefit to competitors and could unduly prejudice the commercial position of a successful tenderer. The fill rate reports essentially set out how many staff the agencies supplied versus what was sought by the HSE and the reasons for any shortfall. An agency argued that this information could allow competitors to spot gaps in the supply of staff and to recruit and deploy staff so as to meet the demand. The nine agencies on the framework split into Tier 1 and Tier 2 agencies. As I understand it, the HSE goes to the Tier 1 agencies initially and if they cannot provide the number/grade of staff needed, the HSE goes to another agency on the Framework. 

The applicant
In correspondence with this Office, the applicant said that the records sought simply gave the expenditure by hospital and profession without detailing any personnel information regarding agency staff. He said that the agencies are protected by contract and that releasing the amount spent by the HSE on each company would not undermine their positions or disadvantage them commercially. He also stated that the individual agency commission rates and the regions and Tiers awarded to each agency are publicly known as this information was released by the HSE at the conclusion of the Tender process. 

Analysis
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 Commissioner takes the view that the test to be applied in this regard is not concerned with the question of probabilities or possibilities, but with whether the decision maker-�s expectation is reasonable. Having examined the records carefully, it seems to me that a competitor who had access to these records would very clearly be able to see how many staff and what grades each agency was providing to each hospital, how many hours' work was involved and what speciality of doctors/nurses was required, etc. It also seems to me that people who were familiar with the smaller hospitals or facilities would be able to identify specific staff from the information in the records. I accept that this could allow a competitor to target or recruit another agency's staff, which could reasonably be expected to cause a material financial loss to that agency.

In relation to the competitive position of the agencies involved, this Office has found in previous decisions that the level of detail contained in the records may be relevant to the usefulness of the information to a third party-�s competitors. In these cases, the level of operational day-to-day information contained in the records is clearly beyond what is available in the public domain. On this basis, I consider that release of the records at issue would reveal the agencies' dealings with the HSE in considerable detail. Therefore, I accept that disclosure could prejudice the competitive position of the agencies concerned. It also seems to me that if the records reveal a pattern or repeated gap between the HSE's needs and an agency's ability to supply suitable staff, a competitor could use this to position themselves to take advantage of this.

I also accept that some of the tender information is known. However, having examined the records, it seems to me that much of this information is not in the public domain and that it relates closely to the day-to-day operations of the agencies concerned. I note that the applicant stated that the NHS routinely made such information available in the UK and that no harm arose as a result. However, from my research, it appears that while the NHS provides some information relating to agency staff under FOI, it does not publish the level of detail contained in the records at issue.

In the circumstances of this case, I find that section 36(1)(b) applies to the information sought. However, I must also consider whether the public interest test at section 36(3) favours the release of the records. 

The public interest
Section 36(3) of the FOI Act requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the request. 

Section 36(1) itself reflects the public interest in protecting commercially sensitive information. I recognise that there is a legitimate public interest in entities being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result. 

On the other hand, the FOI Act recognises, both in its long title and in its individual provisions that there is a significant public interest in government being open and accountable. Section 11(3) of the FOI Act provides that public bodies shall, in performing any function under the FOI Act, have regard to a number of matters, including the need to achieve greater openness in their activities and to promote adherence by them to the principles of transparency in government and public affairs. 

The purpose of the public interest test is to strike a balance between competing interests insofar as they are relevant. As noted in previous decisions, the Commissioner takes the view that the FOI Act was designed to increase openness and accountability in the way in which public bodies conduct their operations; generally speaking, it was not designed as a means to open up the operations of private enterprises to scrutiny.

The HSE stated that it requires the reports in question in order to provide agency staff to locations in an efficient manner. It stated that these reports assist management with an oversight of the allocation of agency staff and associated costs throughout the HSE. It also said that the HSE is unable to gather this information from its own systems. Essentially, it is of the view that this level of information would no longer be forthcoming if the agencies were aware that it would be released under FOI and that this would be contrary to the public interest. However, I note that clause 7 of the sample service level agreement between the parties supplied to this Office by the HSE for the purpose of these reviews clearly sets out the reporting obligations of the agencies on the framework. Accordingly, I do not accept that the agencies on the framework would be in a position to stop providing these reports.

Some of the agencies have argued that the public interest in transparency and accountability in the use of public funds would be met by the release of headline costs and information. They argued that the release of further details would unduly prejudice their commercial positions and that there was no public interest to be served by releasing such detailed information. They also stated that the HSE is struggling to recruit and retain medical staff, so it would not be in the public interest to effectively assist international recruiters in enticing them to work outside the Irish market. They also argued that there was the potential for medical staff to leverage any such offers made to negotiate higher rates of pay, although my understanding is that the pay rates are all based on the HSE's payscales and are not open to negotiation.

Essentially, the applicant is of the view that information relating to the amounts paid to agencies for medical staff should be in the public domain, in order to shed light on how the system is operating. He argued that it was in the public interest to know whether agencies were meeting the quotas set out in the tenders they applied for. He also considered that the public should be aware of the numbers of decision-making medical staff who were not based in the hospitals concerned on a long term basis. 

I have found above that the records concerned contain commercially sensitive operational day-to-day information relating to the agencies and their staff. However, the Commissioner takes the view that, generally the expectation of a diminution of privacy rights, at least in relation to the disclosure of details of commercial transactions with public bodies, is a necessary consequence of doing business with public bodies. In other words, bodies doing business with public bodies should expect a high degree of openness and transparency. 

While I am of the view that the public interest in private enterprises being able to conduct business with the State without being commercially disadvantaged outweighs the public interest in seeing all of the agencies' dealings with the HSE, I consider that the HSE was justified in withholding some but not all of the information sought under section 36(1). I find that, on balance, the public interest favours the release of some of the information concerned. While release of the records in full would address the public interest in openness, transparency and accountability of the HSE in its administration of the Framework, I am of the view that this public interest would be met to a large extent by the release of the type of information already provided to the applicant by the HSE outside of FOI. I consider that, on balance, the public interest would be best served by the release of this information to the applicant and the refusal of access to the remainder of the information in the reports. Accordingly, I direct the release of the following information in respect of each agency for the relevant time periods: agency name, staff grade, total hours for the period and total spend by the HSE to the agency for the period. 

Section 35 - Information provided in confidence

Section 35(1) of the Act provides that a record containing information given to an FOI body in confidence shall be exempt from release under FOI. This is subject to a public interest test. However, section 35(2) provides that the confidentiality exemption at subsection (1) does not apply to a record which was prepared by a head, director or staff member of an FOI body or a service provider, in the course of the performance of his or her functions unless disclosure would constitute a breach of a duty of confidence that is owed to a person other than an FOI body or a service provider. 

While the HSE and the agencies have argued that the information was submitted in confidence under the terms of the Service Level Agreement between the various parties, no party has argued that the records were prepared by anyone other than a service provider to a public body in the course of their functions. Furthermore, there is nothing before me to suggest that a duty of confidence is owed to a person other than, in this case, the HSE or the recruitment agencies concerned.

Accordingly, I find that the HSE has not justified its decision to refuse access to the records sought on the basis of section 35 of the FOI Act.

Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the HSE's decision to refuse access to the records sought in full. I find that section 36(1)(b) applies to the records sought but that the public interest favours the release of certain details in respect of each agency for the relevant time periods as set out above. I find that the HSE was justified in refusing to grant access to the remaining information in the records at issue on the basis of section 36(1)(b).

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 applicant 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.

Elizabeth Dolan
Senior Investigator