Right to Know CLG and the Health Service Executive

CourtInformation Commission
JudgeSection 30 - Functions and negotiations of FOI bodies
Judgment Date28 Sep 2021
Case OutcomeThe Senior Investigator affirmed the HSE's decision under section 30(1)(c) of the FOI Act
RespondentHealth Service Executive
Record NumberOIC-93834-R9D6C6
Whether the HSE was justified in refusing access to the copy of a draft agreement between the HSE and private hospitals under sections 30(1)(b) and (c), 31(1)(a), 35(1)(a) and (b) or 36(1)(c) of the FOI Act OIC-93834-R9D6C6 28 September 2021 Background
On 16 April 2020, the applicant made an FOI request to the HSE for “a copy of the heads/terms of agreement between the HSE and operators of private hospitals in relation to use of private hospital facilities for the duration of the COVID-19 crisis and a copy of the contract between the HSE and operators of private hospitals in relation to use of private hospital facilities for the duration of the COVID-19 crisis”. On 15 May 2020, the HSE issued a decision. It refused access to the Heads of Terms (Record 1) on the ground that they are in the public domain, under section 15(1)(d) of the FOI Act. It refused access to a copy of the contract sought (Record 2), under sections 29, 30(1)(c), 31(1)(a), 35(1)(a) and (b) and 36(1)(c) of the FOI Act. On 2 June 2020, the applicant applied for an internal review. On 25 June 2020, the HSE issued an internal review decision. It affirmed its decision to refuse the request under the original exemptions claimed, in addition to section 30(1)(b) of the FOI Act. On 9 July 2020, the applicant applied to this Office for a review of the HSE's decision.

In conducting my review, I have had regard to the correspondence between the applicant and the HSE as outlined above and to the correspondence between this Office and both parties, as well as the content of the records that were provided to this Office by the HSE for the purposes of this review.
Scope of this Review
The applicant confirmed that he does not seek a review in relation to Record 1. Furthermore, the HSE confirmed that it no longer claims section 29 of the FOI Act. Accordingly, this review is concerned with whether Record 2 is exempt under sections 30(1)(b), 30(1)(c), 31(1)(a), 35(1)(a), 35(1)(b) and 36(1)(c) of the FOI Act.
Preliminary Matters
Before considering the exemptions claimed, I wish to note that while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited.

Secondly, my jurisdiction under section 22 of the FOI Act is to...

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