Mr X, c/o a firm of solicitors, on behalf of a network of providers and the Health Service Executive

• Jurisdiction: Ireland
• Judge: Senior Investigator
• Judgment Date: 05 March 2021
• Case Outcome: The Senior Investigator varied the HSE's decision. He found that the HSE was largely justified in refusing access to the records sought under sections 30(1)(b), 31(1)(a), 35(1)(a), 36(1)(b), 37(1), and 15(1)(a) of the FOI Act. However, he found that the decision to refuse access to a small number of records was not justified and he therefore directed their release, subject to specified redactions.
• Respondent: Health Service Executive
• Record Number: OIC-97248-N7C1V8
• Court: Information Commission

Whether the HSE was justified in refusing access to certain records relating to a tender process carried out in 2018 for the provision of Home Support Services for older people

5 March 2021

Background

In a request dated 14 May 2019, the applicant sought access on behalf of a network of certain providers to 16 specified categories of records relating to a recent tender process for the provision of Home Support Services (HSS) for older people (“Tender Number 10127”). The HSE granted the request in part, but refused it part under sections 15(1)(a), 30(1), 31(1)(a), 35(1)(a), 36(1)(b), (c), and 37(1) of the FOI Act. The matter previously came before this Office on the basis of a deemed refusal of the applicant’s internal review request. On 21 September 2020, following notice of the HSE’s effective position on internal review, the applicant sought a further review of the matter by this Office.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the HSE and the applicant. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

Adopting the numbering system used by the HSE in its most recently updated schedule of records, a copy of which has been provided to the applicant through its solicitor, this review is concerned with the question of whether the HSE was justified in refusing access to the following:

• Records number 5, 6, 11, 19, 21-38, and 41 (in full);
• Records number 1, 2, 12, 13, 18, and 39 (in part);
• Additional relevant records which have been refused under section 15(1)(a).

It is not within the remit of this Office to investigate complaints or to adjudicate on how FOI bodies perform their functions generally.

Preliminary Matters

There are a number of preliminary matters that I wish to address at the outset.

First, section 25(3) of the FOI act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. For this reason, the description I can give of the contents of the records is limited.

Secondly, 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.

Lastly, it is important to note that release of records under the FOI Act is regarded, in effect, as release to the world at large given that the Act places no restrictions on the uses to which records released under FOI may be put. In contrast, in the case of a court order for discovery, records are released subject to an undertaking that they are to be utilised solely for the purposes of the legal proceedings in question; no further use or passing-on is allowed.

Analysis and Findings

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the FOI body shows to the satisfaction of the Commissioner that the decision was justified. The onus is therefore on the HSE to justify its decision to refuse access to the records concerned.

Background

The HSE has explained the background to the request as relating to the tender process undertaken in May 2018 to identify approved providers across the nine Community Healthcare Organisations (CHOs) for the provision of home support services to HSE clients approved after 1 September 2018 where HSE mainstream services are not available. Tender 2018 was initially scheduled to operate until 31 December 2020 but has been extended for a further 12-month period until 31 December 2021.

The tender involved an agreed set of quality specifications as well as capacity and pricing criteria. The intention was to ensure that the HSE would have sufficient capacity from Approved Providers to provide home support services in each of the respective Lots. An analysis was carried out to determine the likely number of Providers required in each Lot/CHO area, with the list of the proposed number of Approved Providers who would be ranked as Tier 1 Approved Providers included as Appendix 1 to the Invitation to Tender (ITT). Tier 2 Approved Providers were meant to form a supplemental pool of service providers who could be called upon to provide required services to the extent that Tier 1 Approved Providers did not or could not fulfil service capacity. “A central feature of the tender structure was that, in the main, service requirements would be delivered from the Tier 1 Approved Provider pool. The HSE did not therefore expressly set out either a maximum or target for the number of Tier 2 Approved Providers required in each Lot/CHO.”

However, it seems that the HSE ultimately realised that the capacity requirements in CHO6 had been underestimated, with the eventual full-year projection for 2018 indicating that there would be approximately 50% more clients than anticipated at the time the ITT was issued. The situation was considered urgent given the absence of any direct provision in CHO6 and therefore the HSE decided effectively to promote the Tier 2 providers to Tier 1. “The number of Approved Providers detailed in Appendix 1 to the ITT was based on information available to the HSE at the time of tendering and given that the position had changed, and in order to meet the necessary service needs, the HSE, by necessity, increased the number of Tier 1 Approved Providers in Lot 6.”

The promotion of the Tier 2 providers to Tier 1 resulted in a complaint from certain of the original Tier 1 providers. The complaint included a threat of litigation, but the HSE and the relevant Tier 1 providers entered into a mediation process that ultimately led to a settlement agreement. The terms of the mediated settlement agreement have not been publicly disclosed. However, the overall average funded rate for home support across both direct and indirect services is made publicly available through, e.g., PQ responses. Record 11(2) reflects that the average funded rate was €24.20 in September 2018. However, the actual rates paid to service providers would vary considerably from the average funded rate depending upon such factors as whether it is for core or non-core service provision.

Section 30(1) – functions and negotiations of FOI bodies

In this context, it is apparent that the HSE regards sections 30(1)(a) and (b) of the FOI Act as widely applicable. Its overarching concern in this case is safeguarding Tender 2018 and thus the supply of care for older people. As the HSE stated in its letter to the applicant dated 21 February 2020, “the documents requested relate to the management of Home Support tendered arrangements, the provision of services and use of budgets and funding. These records form part of the management and deliberative processes of the HSE, and in my opinion, the release of such information would interfere negatively with the function of management of the HSE and in doing so could adversely affect its performance”. The HSE claims that section 30(1) is particularly relevant to records 6, 11, 19, 23, and 30. However, while the HSE has refused access to the records of correspondence with third parties relating to the mediated settlement agreement, and the agreement itself, under sections 31(1)(a) and 36(1), I consider it appropriate to address these records together with records 6, 11, 19, 23, and 30.

Records 6 and 11 relate to concerns raised by a voluntary not-for-profit provider and contain commercial information about its client base, volume of business and sustainability. Record 19 discusses the potential impact of the decision to expand Tier 1 in CHO6 on the operation of the entire tender. Records 23 and 30 include data analysis regarding CHO6 in the context of concerns over the capacity requirements. The HSE considers that the release of these records would have the potential to have a significant negative impact on the operation of Tender 2018. It also states that the type of data analysis in records 23 and 30 is used to monitor the performance of individual agencies.

In addition, I note that record 21 includes a letter from solicitors acting on behalf of a number of Tier 1 providers raising a formal complaint about the promotion of the Tier 2 promoters. The letter stated that legal proceedings would be initiated against the HSE if certain confirmations were not forthcoming, but the parties agreed to enter into a mediation process with the HSE in order to resolve the dispute. The HSE describes the “Mediation Agreement” that was reached as a “confidential legal document”. In previous decisions, this Office has recognised that confidentiality is generally a significant element in alternative dispute resolution processes. In this case, the applicant’s own comments reflect that the terms of the settlement are regarded by the parties as confidential. For instance, the applicant states that a member of his organisation was informed at a Carer’s Conference in November 2018 that “non-disclosure agreements” exist. While the HSE has claimed that section 15(1)(a) applies to any formal non-disclosure or confidentiality agreement, I accept that an understanding of confidence exists in relation to correspondence concerting the complaint,...