Whether the Hospital was justified in refusing access to records that relate to the production of -�The Rotunda-� TV show under sections 15, 30, 35 or 36 of the FOI Act

29 September 2022

Background

In a request dated 9 September 2021, the applicant sought access to -�All material held that refers or relates to the production of the Rotunda TV show to be broadcast on RTE and the safety review undertaken prior to the decision to allow the TV crew access to the hospital.-� Following communications with the Hospital, the applicant agreed to limit the scope of his request to records which relate to series three of the TV show. In a decision dated 20 October 2021, the Hospital identified three records within the scope of the request. It granted access to one record in full and it refused access to information contained in two records on the basis of sections 35 (Confidential Information) and 37 (Personal Information) of the FOI or on the basis that certain information falls outside the scope of the applicant-�s request. On 8 November 2021, the applicant sought an internal review of that decision, he contended that the Hospital ought to hold further records within the scope of his request. On 25 November 2021, the Hospital issued its internal review decision. The Hospital said it conducted further searches and it had identified six additional records. It refused access in full or in part to these records under sections 30 (Functions of FOI Bodies), 35 and 37 of the FOI Act. On 26 November 2021, the applicant applied to this Office for a review of the Hospital-�s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. I have decided to conclude this review by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between the applicant and the Hospital. I have also had regard to communications between this Office and the Hospital, the applicant and the TV show-�s production company on the matter.

Scope of Review

During the course of the review, the applicant stated that that further records within the scope of his FOI request ought to exist and he contended that the Hospital ought to have released record four which is titled -�The Rotunda 3 (Working Title) Access Agreement.-� The Hospital refused access to this record under sections 30(1)(a)/(b) and 35(1)(a) of the FOI Act. Following communications with this Office, the applicant confirmed that he was agreeable to limiting the scope of the review to these two issues.

This Office notified the Hospital of the scope of the review and provided it with an opportunity to make submissions. This Office also notified the TV show-�s production company of the review as an affected third party and provided it with an opportunity to make submissions. In its submissions, the company contended that record four contains commercially sensitive information and should be refused under section 36 of the FOI Act. This Office provided the applicant with details of the company-�s reliance on section 36 of the Act and provided him with details of the searches the Hospital says it carried out to locate all records within scope. In reply, the applicant stated that following receipt of the additional search details, he was agreeable to confining the scope of the review to the Hospital-�s decision to refuse access to record four.

In light of the above, the scope of this review is confined to whether Hospital was justified in refusing access to record four on the basis of sections 30(1)(a)/(b), 35(1)(a) or 36(1)(a)/(b)/(c) of the FOI Act.

Preliminary Matters

The FOI Act provides that a decision on an FOI request shall be made within four weeks of receiving the request. In this case, the Hospital failed to meet the statutory time limit for issuing its original decision. I note that after the request was made, there were communications between the applicant and the Hospital in relation to narrowing the scope of the request. The applicant agreed to narrow the scope of his request on 14 September 2021, which was five days after the request was made. In my view, these communications do not account for the failure to comply with the timeframe set out in the FOI Act in this case which was unsatisfactory.

It should be noted at the outset that a review by the Commissioner under section 22 of the FOI Act isde novo, which means that it is based on the circumstances and the law as they pertain at the time of his decision.

Section 18 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.  However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 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. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Although I am obliged to give reasons for my decision, section 25(3) requires that I take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.

Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Analysis and Findings

Record 4

Record 4 contains the terms and conditions governing the company-�s access to the Hospital to allow it to film the series. I am limited in the description of the access agreement which I can provide as a result of section 25(3) of the Act. I can say that the agreement includes terms which deal with the duration of the filming, consent of staff to filming, consent of patients and their next of kin to filming, health and safety and codes of conduct. Having regard to the content of record 4, I consider that section 36 of the FOI Act is the appropriate exemption provision to consider first.

Section 36 -� Commercially Sensitive Information

The company contends that record four is exempt from release under sections 36(1)(a), (1)(b) and 1(c) of the FOI Act. Section 36(1)(a) provides for the refusal of a request where the record sought contains trade secrets of a person other than the requester. This Office accepts that a trade secret is information used in the trade or business which, if disclosed to a competitor, would be liable to cause real (or significant) harm to the owner of the secret and that the owner must limit the dissemination of it or at least not encourage or permit wide-spread publication. 

Section 36(1)(b) provides for the refusal of a request where the record sought 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 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 standard of proof in relation to the second limb of section 36(1)(b) is very low. All that is required is the possibility of prejudice with the only requirement being that disclosure "could prejudice the competitive position" of the person concerned.

Section 36(1)(c) provides for the refusal of a request where the record sought contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. The standard of proof required to meet this exemption is relatively low. Having said that, the Commissioner expects that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.

In his submissions to this Office, the applicant states that while access agreements will change depending on the type or format of media being created, they are largely standardised documents. He states that companies may have particular ways in which they structure parts of their access agreements, usually based around approved filming locations and the gathering of consent from participant individuals and organisations. However, he states that these sections are not really directly transferable between locations and types of shoots. He states that a number of sections, such as anything to do with camera placement, may be different between companies, but this isn't based on anything which could render a commercial advantage, but rather on the shots favoured by the business in question. He states that that the company's competitors are unlikely to extract any real benefit from the release of the access agreement.

The company states that if the access agreement was released this could prejudice its competitive position. The company contends that while a solicitor could draw up an access agreement, it would not be as detailed, as precise and as specific as this one. It states that this agreement is the result of engagement which it has had during the course of a number of years of making the three series of The Rotunda and also experience it has obtained from other series set in a hospital setting that it was involved in.

The company contends that to release the agreement would provide its competitors, of which there are many, with its -�know- how-� and would give its competitors an understanding of the protocols it uses to approach patients to engage with it about their experiences which are often very sensitive. It states that this work creates the programme for which the company owns the intellectual property rights and it forms part of that creative process. The company states that releasing this agreement into the public domain would literally be giving away years of its experience, hard work and expertise to its competitors.

The Hospital has already released a Covid-19 Starting form. It has also part released the Production Protocols for Filming at the Rotunda (with the names of staff members of the company redacted). This record outlines the measures drawn from public health advice concerning Covid-19 protocols that the company agreed to put in place for filming at the Hospital. The Hospital also part released the Production Risk Assessment (with the names of staff members of the company redacted). This record deals with the risk of contraction of Covid-19.

I have examined the access agreement carefully.  Section C of the access agreement is headed -�Health and Safety-�. This part of the agreement addresses measures to ensure compliance with Infection Control Protocols/Guidelines, including Covid-19 protocols.  In my view, in light of the information already released, section C is not particularly sensitive and is relatively routine in nature. It gives context for the measures that are set out in the Production Protocols document, information on which has already been released, as set out above. I cannot see how disclosure of this section of the access agreement would cause the harm envisaged by the company. I find that section C of the access agreement is therefore not commercially sensitive.

The remaining parts of the access agreement include information about filming, consent of staff, patients and next of kin etc. It seems to me, that release of the remainder could give the company-�s competitors an insight into the protocols the company uses to approach patients to engage with it about their experiences and could provide competitors with an understanding of how the company negotiates with hospitals to secure access to make these documentaries. I accept that the company operates in a competitive market and I accept that release of the remaining parts of the access agreement could prejudice the company-�s competitive position. I find, therefore, that the remaining parts of the access agreements are exempt under section 36(1)(b) of the Act.

Section 36(2)

Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arise in this case.

Section 36(3) The Public Interest

In light of my finding above, it is necessary to consider whether section 36(3) applies to the remaining parts of the access agreement. Section 36(3) provides that section 36(1) does not apply to a case in which the FOI body considers that the public interest would, on balance, be better served by granting than refusing to grant the request. In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. That section recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a -�sufficiently specific, cogent and fact-based reason-� is required -�to tip the balance in favour of disclosure-�. Amongst other things, it found as follows:

-�-� the public interest engaged at this stage of the process must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the record, and the balancing of the interests of commercial sensitivity or confidentiality against the public interest in the disclosure of that content-�

There must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure-�

The public interest override contained in -� section [36(3)] does not seem to me to be a simple restatement of the overall aim of fostering transparency.-�

Moreover, while the Court stated that the public interest balancing test involves a -�weighing of the respective private and public interests in the analysis of the records in issue-�, it did not disturb the guidance that it previously gave in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions.

The applicant states that the filming for season three of the Rotunda took place during the Covid-19 pandemic. He states that this led to criticism of the programme by the Taoiseach, on the basis that it was inappropriate for a film crew to be granted access to the Hospital at a time when partners of pregnant women were being refused access. The applicant states that the Hospital itself apologised for any upset or anxiety that the broadcast of this documentary caused. The applicant contends that there is a legitimate public interest in the terms under which the crew were able to access the Hospital during the Covid-19 pandemic being released both as a general matter of record and so that their access can be examined from a health and safety perspective.

The company contends that it is important that the public get to see what really goes on in Hospitals, particularly maternity hospitals like the Rotunda. It states that it is clear that the Hospital also believe this to be the case as they wish to be able to continue to engage with documentary filmmakers. It states that in each series, it has dealt with emotionally charged issues such as the death of a child, pre and post-natal issues which arise regularly but the public may not be aware of until they personally encounter these unfortunate issues. It states that in many cases, this is the first time these matters have been brought to the public-�s attention on a television series and the company states that it has had positive engagement from the public referring to this benefit.

The Hospital states that the Rotunda series brought an important awareness to the public in Ireland of the provision of unique and challenging maternity services during the pandemic.

It seems to me, that the details already released enable some assessments of the health and safety protocols put in place from a public health perspective. In my view, release of section C of the agreement will allow for a further insight into how the Hospital carried out its functions and the terms governing the film crew-�s access to the Hospital during the Covid-19 pandemic from a health and safety perspective.

It seems to me, however, that the public interest would be better served by withholding the remaining parts of the access agreement. It is worth stating that as a general principle, the purpose of the FOI Act is to achieve greater openness and accountability in the activities of public bodies. It was not designed as a means by which the operations of private enterprises were to be opened up to similar scrutiny. The release of the remainder of the access agreement would involve the disclosure of how the company goes about securing the co-operation of patients, how it goes about securing consent in the area of medically difficult cases, what equipment set up is required to make such a documentary series, what the company is allowed to do etc.  I am not satisfied that, on balance, the public interest would be better served by the release of this type of information to which section 36(1)(b) applies to the extent that overriding the commercial sensitivity of that information would be justified.

In conclusion, I find that the Hospital was justified in refusing to release the access agreement under sections 36 of the FOI Act, with the exception of section C of the agreement which I find is not commercially sensitive. In light of this finding, it is necessary to consider whether section C of the access agreement is exempt under sections 35(1)(a) or 30(1)(a)/(b) the Act.

Section 35(1)- Information obtained in confidence

The Hospital relied on section 35(1)(a) of the Act in refusing access to the access agreement. I will only consider section 35(1)(a) of the FOI Act in relation to the information that I have not found to be exempt under section 36 above, namely section C of the agreement.

Section 35(1)(a) provides for the protection of information given to an FOI body in confidence. For the exemption to apply, it is necessary to show the following: that the information contained in the records was given to an FOI body in confidence; that it was given on the understanding that it would be treated as confidential; that the disclosure of the information would be likely to prejudice the giving to the FOI body of further similar information from the same or other persons, and that it is of importance to the body that such further similar information should continue to be given to it.

It may be that disclosure of the information would be likely to prejudice the giving of information to the FOI body in the future.  However, the question raised by the fourth requirement is whether it is of importance to the FOI body to continue to receive that information. Having regard to the fourth requirement of section 35(1)(a), the Commissioner takes the view that the purpose of section 35(1)(a) is to protect the flow of information which relates to the exercise by the body of its statutory powers and functions.  The nature of the information and its relevance to the exercise of the FOI body-�s powers or the performance of FOI body-�s functions are matters for consideration. In my view, the making of documentaries is not part of the Hospital-�s statutory powers and functions and it is not important to the Hospital that further similar access agreements should continue to be given to it by the production companies. I find, therefore, that section 35(1)(a) does not apply to the information contained in section C of the access agreement.

Section 30 Functions and Negotiations of FOI Bodies

The Hospital relied on section 30(1)(a)/(b) of the Act in refusing to release the access agreement. I will only consider section 30(1)(a)/(b) of the FOI Act in relation to section C of the access agreement. Section 30(1) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to (b) have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff); (c) 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.

Where an FOI body relies on section 30(1)(b), it should identify the potential harm to the performance by the body of any of its functions relating to management that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. Section 30(1)(c) 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.

In relation to section 30(1)(b), the Hospital states that the word -�management-� should be considered in a wide context including planning and management of operational activities including how they are carried out. It states that it strives to maintain valuable professional relationships with all its stakeholders based on mutual confidence. It contends that release of the access agreement would have a significant effect on its relationship with the production company. In relation to section 30(1)(c), the Hospital states that the agreement clearly outlines detailed confidential matters agreed between the parties following negotiations, including approaches and procedures to be used while filming patients and staff, rollout of filming on site and other practical agreements. The Hospital contends that section 30(1)(c) is designed to protect such positions taken for the purpose of negotiations carried on by an FOI body.

The information at issue in this case is section C of the access agreement. This section details Health and Safety measures that the production team agreed to take when entering the Hospital. The Hospital has released similar information in Covid-19 Starting form, Production Protocols for Filming at the Rotunda and the Production Risk Assessment. I am not satisfied that release of section C of the Agreement could reasonably be expected to have a significant, adverse effect on the performance by the Hospital of its functions relating to management or could reasonably be expected to disclose positions taken for the purposes of negotiations. I find therefore that section C of the access agreement is not exempt under sections 30(1)(b) or(c) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Hospital-�s decision. I direct the release of -�Section C Health and Safety-� of the access agreement. I affirm the Hospital-�s decision to refuse access to the remaining parts of the access agreement under section 36 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