Whether the HSE was justified in refusing access to records relating to the procurement of ventilators, under sections 15(1)(a), 15(1)(d), 29, 30, 35, 36 and 40 of the FOI Act

1 November 2022

Background

On 16 December 2020, the applicant made an FOI request to the HSE for:

• records of HSE Covid-related communications regarding the procurement of ventilators generally, and specifically with a named company, and procurement records regarding the arrangements for their storage;
• high level manifests of products imported to Ireland by the named company for the HSE in 2020 and details of the flights transporting same; and
• all invoices served by the named company on the HSE in 2020.

On 14 and 15 January 2021, the HSE granted access to certain information and refused access to the remaining information under sections 15(1)(a) and 15(1)(d) of the FOI Act. On 19 January 2021, the applicant applied for an internal review. On 10 February 2021, the HSE issued an internal review decision. It identified additional records and refused access to those records under sections 29, 30 and 40 of the FOI Act. On 4 March 2021, the applicant applied to this Office for a review of the HSE-�s decision.

In conducting my review, I have had regard to the correspondence between the applicant and the HSE as outlined above and to the correspondence between this Office and both parties, as well as to the content of the withheld records that were provided to this Office by the HSE for the purposes of this review. I have also had regard to submissions obtained from the named company (the company).

I wish to apologise for the delay in reaching a conclusion on this review. The investigation took considerably longer to conclude than I had anticipated.

Scope of the Review

The applicant clarified that he does not seek access to the names and mobile telephone numbers/email addresses of individuals other than FOI staff members, or to bank details. That information is therefore excluded from this review. Record 6 comprises an email which was created after the date of the applicant-�s FOI request and attachments which relate to another entity, which the HSE says has nothing to do with the company. Record 6 therefore also falls outside the scope of the applicant-�s FOI request and this review.

During the review, the Investigator invited the company to make submissions on the release of correspondence between the company and the HSE. The company says that these records are exempt under sections 35 and 36 of the FOI Act. The Investigator drew these exemptions to the applicant-�s attention and obtained his submissions.

The records are scheduled as Records 1, 2, 3, 4.1, 4.2, 4.3, 4.4, 4.5, 5.1 and 5.2. The HSE released Records 1 and 2 to the applicant. Accordingly, the scope of this review is confined to whether the HSE was justified in refusing access to Records 3, 4.1, 4.2, 4.3, 4.4, 4.5, 5.1 and 5.2 (the records) under sections 15(1)(a), 15(1)(d), 29, 30, 35, 36 and 40 of the FOI Act.

Preliminary Matters

Before considering the exemptions claimed, I would like to note the following.

First, regarding the application of exemptions, inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors[2020] IESC 57, the Supreme Court said that -�any refusal to disclose must be fully reasoned and sufficiently coherent, fact specific, and logically connected to the document or record such that the justification is sufficient.-�

Secondly, during the review, this Office received a further copy of the HSE-�s submission, which was annotated and on HSE headed paper. The Investigator drew this document to the HSE-�s attention and invited its submission. The HSE decision-maker said that the document had not come from him and restated the HSE-�s position on the case. The document concerned is from an unknown source and I do not propose to consider it further.

Analysis and Findings

Section 15(1)(a) - Refusal on administrative grounds

Section 15(1)(a)

Section 15(1)(a) provides that a request for access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. In his application for review, the applicant refers to certain documents, which he says indicate that further records may exist other than what is detailed in the HSE-�s schedule. I therefore consider it appropriate to consider section 15(1)(a) of the FOI Act.

The role of this Office in cases such as this is to review the decision of the FOI body and decide whether that decision was justified. This Office has regard to the relevant information available and assesses the adequacy of the searches conducted by the FOI body. The relevant information in -�search-� cases generally consists of the steps taken to search for the records and information about the record management practices of the FOI body, insofar as those practices relate to the records in question. This Office considers all the relevant information and decides whether the decision that section 15(1)(a) applies was justified. It is not normally the function of the Commissioner to search for records when reviewing a decision under section 15(1)(a).

During the review process, the Investigator asked the HSE to answer this Office-�s sample questions on section 15(1)(a), which ask detailed questions about the FOI body-�s record management practices and the searches undertaken in the case concerned. In response, the HSE says -�additional records may well exist but were not discovered following requests for records at the original decision and internal review stages.-� It says that the original decision-maker contacted three relevant people and the internal reviewer searched shared folders and discovered additional records.

This Office takes the view that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or cannot be found. Nonetheless, section 15(1)(a) requires the FOI body to take all reasonable steps to locate relevant records. The HSE did not answer the sample questions on section 15(1)(a), nor did it provide any detail on the searches undertaken in this case. Accordingly, I do not have information before me on its record management practices regarding the records sought, or the specific steps it took to search for the records sought. In the circumstances, I do not have a basis on which to find that the HSE has taken reasonable steps to search for the records. I find that the HSE was not justified in refusing access to further records under section 15(1)(a) of the FOI Act. I consider it appropriate to direct the HSE to undertake proper searches for the records sought. If the HSE locates additional records within the scope of the applicant-�s FOI request, I direct it to make a fresh decision on any such records in accordance with the provisions of the FOI Act.

Section 15(1)(d)

Section 15(1)(d) of the FOI Act provides that an FOI body may refuse to grant a request where the information is already in the public domain. The applicant sought access to details of flights transporting products imported by the company. The HSE refused access to this information under section 15(1)(d) and pointed the applicant to a website entry by a flight company from April 2020. In his internal review request, the applicant says that he does not consider the details of the flights to be in the public domain because of one blog post and says more than one flight was involved.

Having examined the website entry provided by the HSE, I am not satisfied that it provides a basis on which to find that all the relevant details sought by the applicant are in the public domain. That said, an FOI request is only valid insofar as it can be inferred to be a request for a record containing the relevant information. The FOI Act does not require FOI bodies to create records. Whether a record containing the information sought by the applicant exists and/or is held by the HSE is not clear in this case. I find that the HSE was not justified in refusing access to the flight information under section 15(1)(d). I will direct the HSE to make a fresh decision on this information in accordance with the provisions of the FOI Act.

Section 29-� Deliberations of FOI bodies

Section 29(1) of the FOI Act provides that an FOI body may refuse to grant an FOI request if the record contains matter relating to the deliberative process and granting the request would be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for public bodies to show to the satisfaction of the Commissioner that both requirements are met. The public interest test contained in this provision differs from the public interest test found in other exemptions under the FOI Act. To avail of this exemption, the public body must be of the opinion that releasing the records would be against the public interest. Other exemptions require the public body to be of the opinion that the public interest would be better served by release.

The HSE says that the records relate to ongoing commercial negotiations which have yet to conclude. It says that premature disclosure could impact the HSE-�s ability to resolve the matter through negotiation, mediation or litigation, thus harming its commercial interests. It also says that release could interfere with ongoing audits.

The applicant says that section 29 requires that release would be contrary to the public interest, not just that the public interest would be better served by refusal. He says that public bodies are required to publish details of all purchase orders in excess of €20,000. He says that transparency around this transaction is very much in the public interest, as it concerns the expenditure of taxpayers' money, for which he says no benefit was returned to the State.

Section 29(2)(b) provides that the exemption at section 29(1) does not apply to a record insofar as it contains factual information. Section 2 of the FOI Act states that "factual information" includes information of a statistical, financial, econometric or empirical nature, together with any analysis thereof. The Commissioner regards factual information as including material presented to provide a factual background to the central topic in a record, and that factual information is distinguishable from information in the form of a proposal, opinion or recommendation.

A deliberative process may be described as a thinking process which informs decision-making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice.

Having examined the records, I consider that they contain factual information, i.e. facts as opposed to proposals or recommendations. The records disclose the following kinds of information about the purchase of ventilators by the HSE from the company: purchase order details; invoice details; correspondence between the HSE and the vendor and internal correspondence between the HSE about the number of units ordered, prices, delivery dates and payment details. This comprises factual information as opposed to matter relating to a deliberative process. I find that section 29(1)(a) does not apply to the records. I am not then required to consider section 29(1)(b). I find that the HSE was not justified in refusing access to the records under section 29 of the FOI Act.

Section 30(1) -� Functions and negotiations

In its internal review decision, the HSE says that release of the records could reasonably be expected to prejudice the effectiveness of current tests, examinations, inquiries and internal financial audits and have a significantly adverse effect on current management of procurement operations and associated negotiations yet to be concluded.

In a request for submissions, the Investigator asked the HSE to clarify whether it relied on sections 30(1)(a), (b) or (c) or more than one of those provisions. The HSE did not clarify the position in its submission. It says that divulging sources of supply or prices could impact on its ability to secure future pandemic supplies and made a submission under section 30(1)(c). I am therefore proceeding on the basis that it relies on section 30(1)(c). For the avoidance of doubt, on my own examination of the records, it is not apparent to me how their disclosure could reasonably be expected to prejudice the effectiveness of an audit etc. or have a significantly adverse effect on functions relating to management.

Section 30(1)(c)

Section 30(1)(c) of the FOI Act allows an FOI body to refuse to grant an FOI request if access to the record could, in the opinion of the head, reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. Section 30(1) is subject to a public interest test under section 30(2).

It is important to note that this exemption does not contain a harm test. It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc. An FOI body relying on section 30(1)(c) should identify the relevant negotiations at issue. Section 30(1)(c) makes no distinction between disclosures which have the potential to prejudice current or future negotiations or to cause some other harm and disclosures which do not. However, such a distinction should be made in applying the public interest test in section 30(2) to records which disclose positions taken etc. for the purposes of negotiations.

A distinction should be made between the outcome of negotiations and a position taken or plan, procedure etc. used for the purpose of a negotiation. While a record might reveal the outcome of negotiations, it may not necessarily be reasonably expected to disclose the positions taken or reveal plans or procedures etc. used for the purpose of a negotiation. The Commissioner has also distinguished between disclosing the existence of a fact and disclosing a position or plan used for the purposes of negotiations.

The HSE says that there are on-going negotiations with suppliers relating to product quality and delivery issues, involving the HSE-�s legal advisors. It says that the records disclose positions regarding apparent contractual commitments and obligations.

I have described the records above. I am not satisfied that this particular content could reasonably be expected to disclose positions taken or plans, procedures etc. to be used for the purpose of negotiations by the HSE. The records disclose facts and, in my view, not information envisaged by section 30(1)(c). If anything, the number of units, prices, delivery details and payment details would reflect the outcome of negotiations, as opposed to positions or plans or procedures adopted. I therefore do not accept that section 30(1)(c) applies to the records. I find that the HSE was not justified in refusing access to the records under section 30(1) of the FOI Act.

Section 35 -� Information obtained in confidence

The company claims that the records are exempt under section 35(1)(b) of the FOI Act. Section 35(1)(b) of the FOI Act provides that an FOI body shall refuse to grant an FOI request if disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column 3 in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law. 

The applicant says that the HSE and the company supplied him with details of the transaction in December 2020 with no mention of a confidentiality agreement and also that the HSE gave him an initial invoice. He also says that section 35 stresses that it is important to the FOI body that further such information continue to be given to the body and yet no business relationship continues between the HSE and the company.

The HSE did not refer to section 35 or to any confidentiality agreement with the company at decision stage or during the review.

Section 35(2) provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, an FOI body or a service provider) in the course of the performance of his or her functions, unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider. Section 2 of the FOI Act defines -�service provider-� as -�a person who, at the time the request was made, was not an FOI body, but was providing a service for an FOI body under a contract for services and contract for services in this definition includes an administrative arrangement between an FOI body and another person-�.

As section 35(1) does not apply if the records fall within the terms of section 35(2), I should consider section 35(2) at the outset. The records comprise correspondence between the HSE and the company, including an invoice from the company. These records were prepared either by the HSE, which is an FOI body, or the company, through whom the HSE procured the purchase of ventilators. It seems to me that the company was a service provider to the HSE because, in addition to the procurement of goods, the company also provided transportation services and technical support in relation to the ventilators. Accordingly, section 35(1) will not apply to the records unless disclosing them would constitute a breach of a duty of confidence owed to a personother thanan FOI body/service provider etc. under an agreement or statute or otherwise by law.

The company says that disclosure will constitute a breach of duty of confidence under a non-disclosure agreement with the FOI body and suppliers. It says there are multiple contracts under strict confidentiality agreements. In support of its position, the company provided this Office with -�an example copy agreement-�. That document is a contract between the company and the HSE for the supply of ventilators and associated services from the company to the HSE. I note that it contains a confidentiality clause, which requires the non-disclosure of the terms of the contract or any -�confidential information-�. The terms of the contract and any information disclosed by either party in relation to the contract are deemed to be -�confidential information-�. Despite its reference to -�multiple contracts-�, the company did not refer this Office to any other contracts with any third parties.

As set out above, it is my view that the company was a service provider to the HSE. Accordingly, any duty of confidence under the contract is not owed to a personother thanan FOI body or service provider and section 35(1) is disapplied. In theMinister for Communications, the Supreme Court found that section 35(2) was enacted to avoid a situation where an FOI body and a third-party service provider could rely on a confidentiality clause to prevent release. I find that the HSE is not justified in refusing access to the records under section 35(1)(b).

Section 36(1) - Commercial Sensitivity

Section 36(1)(a) of the FOI Act provides that an FOI body shall refuse to grant an FOI request if the record concerned contains trade secrets of a person other than the requester concerned.

Section 36(1)(b) of the FOI Act provides that an FOI body shall refuse to grant an FOI request 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.

Section 36(1)(c) of the FOI Act provides that an FOI body shall refuse to grant an FOI request 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.

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 company says there are serious concerns regarding misuse of this information. It says that releasing confidential information and trade secrets will jeopardise its business relations, hampering business contracts. It says the records contain commercially sensitive information regarding the acquisition of supplies under unique national emergency conditions. It says the pricing is strictly confidential under a non-disclosure agreement. The company says that the records contain out-of-date information regarding critically urgent supplies. The company submits that the public interest would not be better served by release because the information contains commercial details which were not executed in the manner described, so the information may be misused and manipulate details of the actual events.

The applicant says that much of the detail about the deal is already in the public domain, mostly through his own reporting. He says that the public interest would be greatly served by seeing the communications which led to the transaction, in terms of oversight and insight into the spending of taxpayer money.

Regarding section 36(1)(a), the Commissioner accepts that an exact definition of a trade secret is not possible and that some factors to be considered in determining whether information is a trade secret are: (1) the extent to which the information is known outside of the business concerned; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the business to guard the secrecy of the information;(4) the value of the information to the business and to its competitors; (5) the amount of effort or money expended by the business in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. Although the company refers to -�trade secrets-�, it does not elaborate on this point or identify any particular information within the records which could qualify as a trade secret. Neither is such information apparent to me on my own examination of the records. In the circumstances, there is no basis for me to find that section 36(1)(a) applies.   

As the Supreme Court observed inUniversity College Cork and the Information Commissioner & Ors2020 [IESC] 58, it is not sufficient for the FOI body to merely assert that disclosure could prejudice its competitive position; an FOI body must also have a reasonable basis for that position. I have examined the content of the record and considered the submissions. For section 36(1)(b) to apply, there must be a link between disclosure and the harms alleged. However, I am not satisfied that such a link exists. The records disclose correspondence between the HSE and the company to arrange the payment for, and delivery of, a number of ventilators in what the company itself described as unique emergency conditions. The company has not explained to mehowdisclosing this information could prejudice its competitive position or could reasonably be expected to result in material loss to it. Furthermore, it is not apparent to me on my own examination of these records how disclosing them could result in these harms.

The company-�s principal concern seems to be that the records do not necessarily reflect what was actually paid for and supplied and as such, the information may be misused. However, this of itself does not mean that the criteria in section 36(1)(b) are met. Regarding the possibility of information being misunderstood, it would be open to the HSE to put further information in the public domain or otherwise clarify its dealings with the company. In that regard, I note that one of the records which the HSE released to the applicant states what the HSE paid to the company. I find that section 36(1)(b) does not apply.

Finally, the company does not make submissions on the conduct or outcome of any negotiations. I therefore do not propose to consider section 36(1)(c).

Given this finding, I am not required to consider sections 36(2) or (3). I find that the HSE is not justified in refusing access to the records under section 36(1) of the FOI Act.

Section 40 - Financial and Economic Interests of the State

The HSE claims that the records are exempt under section 40(1) of the FOI Act. Where an FOI body relies on section 40(1), it should identify the potential harm specified in the relevant paragraph that might arise from disclosure and then consider the reasonableness of any expectation that the harm will occur. The FOI body should show the link between granting access to the record concerned and the harm identified. It must go on to consider the public interest test under section 40(3) before reaching a conclusion on the application of the exemption.

In a request for submissions, this Office-�s Investigator asked the HSE to clarify whether it relied on sections 40(1)(a), (b), (c) or (d), or more than one of those provisions. The HSE did not clarify the position in its submission. It says that the records relate to sensitive commercial matters not yet concluded, which involve legal advisors and may result in legal action. It says that premature disclosure could adversely impact the HSE-�s ability to resolve these matters either through mediation or litigation.

It is notable that the HSE-�s submissions make no reference to the specific provisions of section 40. Neither is it apparent to me on examining the content of the records how the criteria of sections 40(1)(a), (b), (c) or (d) are met. In the circumstances, I have no basis on which to find that section 40(1) applies. Given this finding, I am not required to consider the public interest balancing test under section 40(3) of the FOI Act. I find that the HSE was not justified in refusing access to the records under section 40(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I annul the HSE-�s decision. I direct it to release the records, subject to the redaction of bank details and the names and mobile telephone numbers/email addresses of individuals other than FOI staff members. I also direct the HSE to undertake proper searches for the records sought by the applicant. If the HSE locates additional records within the scope of the applicant-�s FOI request, I direct it to make a fresh decision on any such records in accordance with the provisions of the FOI Act. Finally, I direct the HSE to make a fresh decision on the flight information sought by the applicant in accordance with the provisions of the FOI Act.

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.

Deirdre McGoldrick
Senior Investigator