Ms X and The Health Service Executive

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 24 July 2015
• Case Outcome: The Senior Investigator varied the decision of the HSE in this case by (i) affirming the decision to refuse access to records 8, 9, 10 (part), and 19 on the basis of section 28(1) and record 15 on the basis of section 21(1)(a) of the FOI Act and (ii) directing the release of records 10 (part) and 11 with the personal information of individuals other than the applicant redacted in record 10.
• Court: Information Commission
• Record Number: 140099
• Respondent: HSE

Whether the HSE was justified in deciding to refuse access to certain records of correspondence concerning a review of the governance and management of the NSEU on the ground that the records are exempt from release under section 21(1)(a) and section 28(1) 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 made an FOI request for access to records concerning a review carried out by the HSE. The request was sent to the review team (two named individuals) via the HSE on 15 July 2013 for access to:
"copies of all correspondence between the review team (yourselves) and Mr Greg Price HSE Advocacy Unit and/or Mr Tony Leahy HSE Mental Health Specialist. This should include all records of any meetings that either or both of them had with yourselves, all written correspondence between yourselves and either or both of them and a record of all telephone conversations and the content of those conversations between yourselves and either or both of them. I would also like a full account of the cost of the review to date and the daily rate at which each of you is being paid."
In its decision of 24 October 2013, the HSE granted the request in part by releasing records and refusing access to certain other records on the basis of section 21(1)(a) and section 28(1) of the FOI Act. The applicant requested an internal review of the decision on 7 November 2013 to refuse access to records 8, 9, 10, 11, 15, 19, 25 and 26 as numbered on the schedule provided with the original decision. The applicant made two FOI requests to the HSE and there appears to have been some confusion concerning this internal review request which resulted in a delayed response from the HSE. However, the HSE affirmed the original decision in its late internal review decision of 3 March 2014.
The applicant wrote to this Office on 23 April 2014 seeking a review of the HSE's decision. I consider that the review should now be finalised by way of a formal, binding decision.
In reviewing this case I have had regard to the following:
the HSE's decision on the matter,
the HSE's communications with this Office,
the applicant's communications with this Office,
communications between the applicant and the HSE on the matter,
the content of the withheld records provided to this Office by the HSE for the purposes of this review.

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.

Scope of the Review

In accordance with section 34(1)(a) of the FOI Act, as amended, the Commissioner's review must be confined to the decision taken by the public body concerned in response to relevant issues raised in an internal review application, as made under section 14 of the FOI Act. In her letter to this Office of 23 April 2014, the applicant stated that her request for relevant telephone records in her original request was totally ignored by the HSE. However, I note that in her internal review request of 7 November 2013 the applicant did not seek a review of these records and therefore the telephone records referred to by the applicant are outside the scope of this review. Having carefully examined the records the subject of this review, I take the view that record 25 is outside the scope of the request since the HSE has confirmed to this Office that it was not included in any correspondence between the Reviewers and Mr Tony Leahy and/or Mr Greg Price. Record 26 is an exact copy of record numbered 15. Therefore this review is concerned solely with whether the HSE was justified in refusing access to records 8, 9, 10, 11, 15 and 19.

Preliminary Matters

In her application to this Office, the applicant asked the Commissioner to investigate the reasons for the delays she experienced while the National Advocacy Unit of the HSE were processing her requests and also what she views as the apparently deliberate delays in the process. The applicant feels very strongly that her right to due process has been purposefully and calculatedly denied by the actions of the HSE. Matters concerning how the FOI requests and the issues which gave rise to the creation of the records in this case, were handled by the HSE are outside the remit of the Commissioner in this review. In this regard, I note that the applicant has made a number of criticisms of the HSE and I am satisfied that all relevant matters within the scope of the review and within the Commissioner's jurisdiction have been considered.

Section 43(3)
Section 43(3) of the FOI Act requires the Information Commissioner to 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 I can give of the records themselves is limited as is the extent of the detail I can include concerning the reasons for my findings.

Section 13
I should explain the approach to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 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 13 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.

Finally, I should explain that a review by the Commissioner under section 34 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116. In a more recent judgment, The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained: "The Commissioner was entitled to consider all of the material before her on the date on which she...