Right to Know CLG and Department of Health (FOI Act 2014)

• Judge: Stephen Rafferty Senior Investigator
• Judgment Date: 12 December 2018
• Case Outcome: The Senior Investigator varied the decision of the Department. He annulled the Department's decision to refuse access to one record in part under section 31(1)(a) of the FOI Act and found that 42(f) of the Act also did not apply. He affirmed the Department's decision to refuse access to bank account details redacted from another record under section 37(1) of the Act. He also affirmed the Department's decision to refuse access to additional records relating to the comparative study referred to in part 2 of the applicant's request on the basis that such records are not held by the Department within the meaning of section 2(5) of the Act.
• Court: Information Commission
• Record Number: 170466
• Respondent: Department of Health

12 December 2018

Whether the Department was justified in refusing to grant access to additional records requested by the applicant relating to the Surgical Symphysiotomy Ex Gratia Payment Scheme

Background

The subject matter of the request in this case is similar to the request made by the same applicant in Case 170398, available at www.oic.ie. As noted in the previous case, the Surgical Symphysiotomy Ex Gratia Payment Scheme (the Scheme) was established by the Government on 10 November 2014 to compensate women who had undergone a surgical symphysiotomy procedure. Judge Maureen Harding Clark was appointed independent judicial Assessor to the Scheme. In October 2016, Judge Harding Clark submitted her Report on the Scheme to the Minister for Health. The Report was subsequently published on 19 October 2016.

On 9 December 2016, the applicant made a request to the Department for the following information relating to the Scheme:

1. The contract, letter of appointment or similar record which contains the agreement between the Department and Maureen Harding Clark for the purposes of her appointment as the assessor in the "Surgical Symphysiotomy ex gratia payment scheme"
2. All information relating to the comparative study being undertaken in the radiology department of the Mater Hospital which is referred to at footnote 33 on page 28 of the Payment Scheme Report.

The applicant specified that the request extended to records held by Judge Harding Clark and the Scheme itself.

In a decision dated 9 January 2017, the Department granted access to a small number of records in full or in part, but it stated that it holds no records on behalf of Judge Harding Clark or on behalf of the Scheme itself. On 20 January 2017, the applicant sought an internal review of the decision, challenging the redactions made to the records to which access had been granted in part but also arguing that an inadequate search had been carried out in relation to part 2 of the request. The applicant argued, in essence, that Judge Harding Clark and the consultant qualified as "service providers" within the meaning of the FOI Act and that any records relating to the services provided under the Scheme are therefore deemed to be held by the Department. The applicant also referred to email services provided to the Scheme by the Department as well as any emails or other correspondence and documents exchanged between the Department and the Assessor.

In a belated decision dated 5 April 2017, the Department granted access in full or in part to four additional records that had been found during its internal review. Access to some but not all of the previously redacted material was also granted. In relation to part 2 of the applicant's request, the Department noted that, as the Scheme had concluded at the time of the request, neither Judge Harding Clark nor the consultant was a service provider as defined in the FOI Act. It acknowledged that it has a "number of mail boxes" for Judge Harding Clark and her support staff which may be relevant to the request. However, in light of the stipulations of paragraph 46 of the agreement appointing Judge Harding Clark as Assessor to the Scheme and the nature of her appointment (i.e. to conduct an entirely independent review), the Department found that it does not hold the records despite the fact that they are within its possession.

On 27 September 2017, the applicant notified this Office that it was not satisfied with the Department's position and that the application for review, previously made on 16 March 2017, should proceed. Submissions were subsequently made by the applicant and the Department on 25 October 2017 and 4 December 2017, respectively.

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 applicant and the Department. I note that, while the Department had claimed in its internal review decision that the redaction made from record 1 consisted of a home address, it conceded in its submission that it was in fact the address of the premises from which Scheme operated. I further note that the address was in fact disclosed by the partial release of record 2. In its submission, the Department stated that it now has no issue with releasing record 1 in full. The Department also subsequently agreed to release record 4 in full. I have otherwise decided to conclude this review by way of a formal, binding decision.

Scope of the Review

In Case 170398, it was established that the study referenced in the footnote on page 28 of the Report is the subject of Appendix 1 of the Report, entitled "Symphysiotomy & Pubiotomy Review - An Imaging Perspective", written by the consultant from the Mater Hospital who assisted Judge Harding Clark in her role as Assessor to the Scheme:

https://health.gov.ie/blog/publications/the-surgical-symphysiotomy-ex-gratia-payment-scheme-report/. In an email dated 14 November 2017, the applicant confirmed that this is the study to which part 2 of the request refers. The applicant also clarified that no personal information of any of the applicants to the Scheme is sought. Accordingly, my review in this case is concerned solely with the question of whether the Department was justified in refusing access in part to records 2 and 8 as well to any additional records relating to Appendix 1 of the Report apart from the personal information of the applicants to the Scheme.

Analysis and Findings

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." Adopting the numbering system used by the Department in this case, I note that partial access has been refused to records 2 and 8 under sections 31(1)(a) and 37(1) of the FOI Act, respectively. In its submission to this Office, the Department has also indicated for the first time that it considers that the redacted part of record 2 falls within the ambit of section 42 of the FOI Act.

Record 2
Record 2 is a letter dated 17 November 2014 from an Assistant Secretary in the Department to Judge Harding Clark regarding the decision to indemnify her for her work as Assessor to the Scheme. The letter, including an attachment, has been released subject to the...