Ms D and the Health Service Executive

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 10 July 2015
• Case Outcome: The Senior Investigator found that the HSE was justified in deciding to refuse access to the records, in accordance with section 30(1)(a) and section 37(1) of the FOI Act. She affirmed the decision of the HSE.
• Court: Information Commission
• Record Number: 150031
• Respondent: Health Service Executive Mid Leinster

Whether the HSE's decision to refuse the applicant's request for access to records concerning an investigation into the immunisation of her child was justified under section 30 of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 12 November 2014, the applicant made a request to the HSE for "all information relating to [her] complaint" regarding the immunisation of her child. On 10 December 2014, the HSE declined the request. On 19 December 2014, and again on 20 January 2015, the applicant sought an internal review of the refusal. The decision was upheld by the HSE on internal review. On 2 February 2015, the applicant sought a review of the HSE's decision.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the relevant records, to the submissions of the parties, and to the provisions of the FOI Act.

Scope of the Review

The scope of this review is concerned solely with whether the HSE was justified in refusing to release the requested records to the applicant.

Preliminary Matters

On 16 February 2015, this Office advised the HSE that it appeared from the records submitted that the HSE had not issued its internal review decision within the three week timeframe specified in the FOI Act (section 21(4)). On 25 February, the HSE apologised for the "delay in acknowledging the review request" of 19 December 2014.

On 24 March 2015, Stephen Rafferty, Senior Investigator in this Office, wrote to the Director General of the HSE to advise that, in his opinion, the information provided in both the initial decision and the internal review decision fell well short of the requirements of section 21(5)(c) of the FOI Act. Pursuant to the provisions of section 23, Mr Rafferty directed the Director General to furnish a written statement to this Office, within three weeks, containing a statement of the reason(s) for refusal of the request, to include an identification of the relevant provisions of the FOI Act and the findings on any material issues relevant to the decision and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision. On 14 April 2015, the HSE furnished the statement as directed.

Findings

It should be noted that the courts have taken the view that, under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large. Additionally, while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions during 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 is limited.
The records at issue are contained within five files, and concern an investigation into a complaint by the applicant regarding the immunisation of her child. In January 2014, the applicant initiated her complaint. In February 2014, the HSE commenced a "Trust in Care" investigation. Interviews were held with staff involved in the vaccination of the applicant's child, and other relevant persons. In September 2014 a preliminary report was furnished to the staff and to the HSE's area manager. Submissions were received from staff and from the Irish Nurses and Midwives Organisation (INMO) and the Irish Medical Organisation (IMO). Following consideration of these submissions, the area manager decided not to accept the report's content or findings.

On 10 December 2014, the HSE wrote to the applicant (separately to its decision letter regarding her FOI request) to explain why the report had not been accepted. In its letter, it quoted from the submission of the IMO, which had stated that "There are serious factual inaccuracies and inconsistencies...with a complete disregard for procedure by the investigation team...[The "Trust in Care" policy guidelines] were significantly deviated from by the team undertaking the investigations which may render the investigation process invalid." In its submissions to this Office, the HSE has provided further details of the procedural flaws.

Section 30

The HSE has sought to rely on section 30(1)(a) of the FOI Act, which provides that an FOI body may refuse to grant a request if access to the records could reasonably be expected to prejudice the effectiveness of, inter alia, investigations conducted by or on behalf of the FOI body, or the procedures or methods employed for the conduct thereof.

In arriving at a decision to claim a section 30 exemption, an FOI body must, firstly, identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the...