Mr X and Sunbeam House Services

• Jurisdiction: Ireland
• Judge: Senior Investigator
• Judgment Date: 21 April 2021
• Case Outcome: The Senior Investigator varied the decision of SHS. She affirmed its decision on certain information under sections 30(1)(a) and 37 of the FOI Act. She annulled its decision on the remaining information and directed its release.
• Court: Information Commission
• Respondent: Sunbeam House Services
• Record Number: OIC-94883-X8X6D2

Whether SHS was justified in refusing access to a report about a residential centre under sections 29, 30(1)(a), 30(1)(b), 35, 36(1)(b), 36(1)(c) and 37(1) of the FOI Act

21 April 2021

Background

On 17 February 2020, the applicant made an FOI request to SHS for board minutes, a specified report from 2018 and two other specified reports from 2017. On 26 May 2020, SHS issued a decision. It granted access to certain information and refused access to the remaining records under sections 29, 30, 35 and 37(1) of the FOI Act. On 10 June 2020, the applicant applied for an internal review. On 3 July 2020, SHS issued an internal review decision, in which it varied the exemptions relied upon in relation to certain information. On 3 July 2020, the applicant applied to this Office for a review of SHS's decision.

In conducting my review, I have had regard to the correspondence between the applicant and SHS as outlined above and to the correspondence between this Office and both parties, and the content of the record that was provided to this Office by SHS for the purposes of this review.

Scope of this Review

During the review process, the Investigator clarified with both parties that only Record 3 falls within the scope of this review. Furthermore, during the review process, SHS claimed additional exemptions over Record 3, under sections 29, 36(1)(b) and (c) of the FOI Act. The Investigator notified the applicant of this. Accordingly, the scope of this review is confined to whether SHS was justified in refusing access to Record 3 under sections 29, 30(1)(a), 30(1)(b), 35, 36(1)(b), 36(1)(c) and 37(1) of the FOI Act.

Preliminary Matters

Before considering the exemptions claimed, I wish to note the following points. First, SHS says that it is subject to a number of legal, regulatory, contractual and policy requirements. It says that these make “ample provision” for “disclosure to the public of all information deemed relevant or desirable in the public interest” and the fact that other methods of scrutiny are available “diminishes the weight that might be accorded to any public interest in favour of disclosure of particular aspects of the report”. I should say that I do not accept this as a general proposition. FOI bodies such as SHS are subject to various obligations. In addition to this, the Oireachtas has provided for them to be subject to the FOI Act. My function is to review the decision of the FOI body under the provisions of the FOI Act, including the public interest test where relevant.

Secondly, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the record and the level of detail I can discuss in my analysis are limited.

Thirdly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Finally, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" as the FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Analysis and Findings

Having examined the content of the record and SHS’s submissions, I believe it is appropriate to consider sections 30 and 37 first.

Section 30 – Functions and Negotiations of FOI Bodies

Section 30(1)(a)

SHS claims that the record is exempt under section 30(1)(a). Section 30(1)(a) allows an FOI body to refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice the effectiveness of tests, examinations etc. conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. The Commissioner accepts that section 30(1)(a) is not aimed solely at investigations, inspections or evaluations now in progress but may also cover similar exercises conducted in the future. Section 30(1) is subject to a public interest test under section 30(2).

SHS says that it is required to conduct certain audits and also conducts its own investigations. It says this report was internally commissioned to elicit “candid, warts-and-all” views. It says that staff who participated were assured that the report would not use their names or identities. It says that disclosing it could reasonably be expected to prejudice the effectiveness of its investigations and procedures. It says that conducting an effective investigation needs a culture of full disclosure and cooperation. It refers to an incident of adverse publicity around another SHS location, following which staff refused to engage with management. It says that it is reasonable to expect from that experience that if this report is released, staff will not engage or engage as fully as is necessary for an investigation, which means that the methods used by SHS for investigations will be adversely affected.

The record contains the following kinds of information: the report’s methodology, background facts about the residential unit (e.g. its funding sources and staffing arrangements); issues and incidents which have arisen; feedback from an online questionnaire; feedback from interviews with staff and residents; the report’s recommendations; and an action plan of issues, findings and management responses. Having examined its content, I am satisfied that the record relates to an investigation for the purposes of section 30(1)(a).

In assessing whether disclosing it could reasonably be expected to result in the harms alleged, I consider it appropriate to distinguish between the different kinds of content and what they would disclose if released. It seems to me from the candid tone of the direct quotes from (unnamed) staff, highlighted in blue font on pages 15-26, that those comments were made solely for the purpose for the report. I am also cognisant that staff were given assurances of confidentiality. I accept that staff may be less likely to be as forthcoming if such detailed feedback were disclosed to the world at large. I am therefore satisfied that disclosing this level of detail could reasonably be expected to prejudice the effectiveness of investigations. I find that section 30(1)(a) applies to it.

The remaining information comprises the report’s methodology, background, issues and incidents, summaries of feedback in prose, graphs and pie-charts, recommendations, and an action plan. I do not accept that staff would not cooperate with future investigations if this information were disclosed. SHS drew my attention to the fact that HIQA has published inspection reports about the residential unit concerned. Those reports contain information about the unit and incidents which have arisen, including in 2017, the year of this report. Staff would therefore be aware that much information about the unit is publicly available. I also note that the report states that staff agreed that the findings were accurate and the actions welcomed, which indicates agreement with its content. Furthermore, it does not necessarily follow that disclosing this information would lead to unwelcome publicity. Even if there might possibly be unwelcome publicity about issues in 2017, I am not satisfied that disclosure could therefore reasonably be expected to prejudice investigations or procedures. It would be open to SHS to clarify or contextualise matters if necessary. Finally, the remaining information does not name staff and excludes direct quotes. I consider the issue of personal information separately under section 37 below. As such, its disclosure would not seem to me to undermine the conditions of anonymity and confidentiality under which staff provided information. I find that section 30(1)(a) does not apply to the remaining information.

Given this finding, I am required to apply the public interest balancing test under section 30(2) in relation to the staff quotes. SHS submits that there is no public interest in granting access to the specific content of the report. At the outset of its submission, it says that the Supreme Court stated in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors 2020 [IESC] 57 that “the public interest will in fact normally be served by the operation of the exemption itself, which provides for refusal of an FOI request.” In this regard, the Supreme Court said that section 36(1) “recognises that there is a public interest in the protection of commercial sensitivity and this may be normally served by the operation of the exemption itself, which provides for the refusal of an FOI request” (my emphasis). I do not believe that this statement should be construed as suggesting that as a general principle, the public interest will normally be served by a record being found to be exempt. Moreover, the Supreme Court found that a record cannot be said to be exempt until both limbs of the test for exemption are met.

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of...