Ms. J and The Health Service Executive

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 08 October 2015
• Case Outcome: The Senior Investigator found that the HSE was justified in its decision to refuse access to the records sought in accordance with the provisions of sections 21, 22(1)(a) and 10(1)(a) of the FOI Act, and that other records sought by the applicant fell outside the scope of the FOI request. She affirmed the decision of the HSE.
• Court: Information Commission
• Record Number: 140118
• Respondent: Health Service Executive

Whether the HSE was justified in its decision to refuse access to some of the applicant's employee records on the basis of legal professional privilege under section 22(1)(a) of the Act; under section 21 of the Act (release could affect the functions and negotiation positions of the HSE) and on the basis that further records sought by the applicant do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts under the provisions of section 10(1)(a) of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant submitted an FOI request to the HSE on 23 October 2013 requesting a copy of her entire personnel file.

The HSE issued its decision in response to this request on 6 December 2013. The HSE released certain records to the applicant but withheld others on the basis of sections 20(1)(a), 21(1), and 22(1)(a).

The applicant applied for an internal review of this decision on 10 December 2013. In its internal review decision of 4 February 2014, the HSE varied its original decision and released further records to the applicant. However, it upheld its decision in relation to certain records withheld under sections 22(1)(a), 21(1) and 20(1)(c).

The applicant was not satisfied with this response and applied to this Office for a review of the HSE's decision on 13 May 2014. The applicant considered that she should be granted access to all records held on her personnel file and also that the HSE had not located all records that came within the scope of her request.

During the course of this review it became apparent that the HSE had not located and considered all records within the scope of this request, in particular, records relating to positions held by the applicant during her career at the HSE prior to 2008. The applicant clarified to Mr. Christopher Campbell of this Office on 28 July 2014 that she was seeking records beyond those considered by the HSE in its earlier decisions. This required extensive searches to be conducted by the HSE which took some time to complete.

Following additional searches the HSE issued further decisions on the records found on 7 May 2014, 14 August 2014, and 15 August 2014. The HSE forwarded copies of these decisions and the records considered to this Office on 10 November 2014. The fact that the HSE divided the applicant's request and issued a number of internal review decisions, released records to the applicant as they were found and released some records more than once has contributed to the delay in processing this review. The reason the HSE did this was because of the extremely broad scope of the applicant's request, and this FOI request might have been dealt with more satisfactorily, and quickly had the request been more specific in scope. The HSE also addressed submissions made by the applicant to this Office raising concerns that further records existed which should have been released in response to her FOI request.

In an email to Mr. Campbell of this Office on 18 September 2014 the applicant stated that she understood that substantial searches had been carried out to locate records pertaining to the early part of her career and that she would be satisfied with a decision under section 10(1)(a) in relation to records that did not relate to the periods 1994 to 2011. The applicant went on to state that she was "primarily concerned with records... from January 1st 2011 to date." The applicant specified that she now specifically sought records relating to three management posts she held from September 1 2008 to date. The HSE subsequently carried out detailed searches to locate all records relating to the applicant's employment in the three specified positions for this time.

Following receipt of the responses from the HSE in relation to various queries arising from the applicant's submissions, I now consider that this review should be brought to a conclusion by the issue of a formal binding decision. In conducting this review I have had regard to the decisions of the HSE on this request and its communications with this Office; the communications of the applicant with the HSE and this Office; and the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Preliminary Matters

While I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(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 somewhat limited as is the level of detail I can disclose in relation to the HSE's submissions.

Scope of Review

The applicant in her submissions during the course of this review requested information in relation to emails "to and from HIQA". The HSE has stated that the emails contemplated by the applicant do not relate specifically to her but relate to the functioning and role of HIQA with regard to services in which the applicant worked at some stage. These emails were not a part of the applicant's personnel file and do not come within the scope of the applicant's original request.

The applicant in her submissions also requested a copy of a mediation agreement which resulted from a mediation process she engaged in with the HSE. HSE Employee Relations HSE Dublin North East advised this Office that this record was not on the applicant's personnel file since, due to the confidentiality of this process, the agreement is held by the mediator. Accordingly, this record is also outside the scope of this review.

The position of the HSE is that a number of records within the scope of this request are exempt from release under sections 21 (Functions and negotiations of public bodies), are legally privileged records which are exempt under section 22(1)(a) of the Act, and that it does not hold any further records within the scope of this request. Therefore this review is concerned with the question of whether the HSE was justified in refusing access to the information requested on the basis of sections 21, 22(1)(a) and also under section 10(1)(a) of the FOI Act on the basis that further records do not exist or cannot be found after all reasonable searches have been conducted.

Analysis and Findings

Section 22
Section 22(1)(a) of the FOI Act provides that a request for a record shall be refused if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege. The Commissioner accepts that legal professional privilege enables maintaining the confidentiality of two types of communication:
- Confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and
- Confidential communications made between the client and a...