Whether the HSA was justified in refusing to grant the applicant's request for a particular Exhibit to an expert witness statement, under various provisions of the FOI Act

25 September 2018   

Background

On 6 November 2017, the applicant made an FOI request to the HSA for a particular Exhibit to an expert witness statement. 

The HSA's decision of 14 December 2017 refused access to the record under section 42 of the FOI Act, which restricts access under FOI to certain records held by An Garda Síochána (AGS). It also relied on section 37 (personal information) in granting partial access to a further record not covered by the request. 

The applicant sought an internal review of the HSA's decision on 17 January 2018. The HSA's internal review decision of 8 February 2018 affirmed its refusal of the requested record under various provisions of sections 30 (functions and negotiations of FOI bodies), 32 (law enforcement and public safety) and 35 (information provided in confidence) as well as under Schedule 1, Part 1 of the FOI Act (partially included agencies). On 17 April 2018, the applicant sought a review by this Office of the HSA's decision. 

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to details of the above exchanges and to correspondence between this Office, the HSA, and the applicant. I have had regard also to the requested record and to the provisions of the FOI Act. 

Scope of Review

This review is confined to whether the HSA has justified its refusal to grant the applicant's request for the Exhibit. It cannot be extended to the other record considered in the HSA's original decision.

Findings

In making my decision, I must comply with section 25(3) of the FOI Act, which requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, the description that I can give of the record as well as the extent of the analysis based on the submissions made is very limited.

It seems from the HSA's submission that it is no longer relying on section 42 or Schedule 1, Part 1 of the FOI Act; it claims that the record is exempt under sections 30(1)(a), 32(1)(a)(i) to (iii), 35(1)(a) and 35(1)(b) of the FOI Act. I will consider the most relevant first i.e. section 30(1)(a) of the FOI Act. 

Section 30(1)(a) - prejudice to investigations and to procedures employed for investigations 

Section 30(1)(a) provides that a request may be refused if granting it could, in the opinion of the head of the FOI body, reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for their conduct. Although the applicant argues otherwise, I see no reason why this provision cannot be applied to records containing personal information relating to him.

The provision envisages two potential types of "prejudice" or harm: (i) to the "effectiveness" of the tests, etc (i.e. the ability of the test, etc to lead to a result of some kind) or (ii) to the procedures or methods employed for the conduct of such tests, etc. Where an FOI body relies on section 30(1)(a), it should identify the potential harm that might arise from disclosure, show how the "prejudice" or harm might be caused, and consider the reasonableness of any expectation that the harm will occur.  

The HSA's arguments

The HSA is not arguing that the grant of access could impact on the particular investigation that concerned the applicant. Rather, it says that the grant of access to the record could reasonably be expected to prejudice the effectiveness of procedures or methods it employs for the purposes of performing its functions generally. It says that it has made extensive cooperative arrangements (which it described in its submission) with AGS in order to effectively investigate health and safety at work incidents, and to avoid duplication of investigative functions. It says that records provided to it by AGS further to the arrangements are provided confidentially and for the sole purpose of investigating a particular incident. It also says that the Exhibit is an AGS operational record. In this regard, the right of access under FOI to records held by AGS only extends to administrative records relating to human resources, or finance or procurement matters.

The HSA argues that it is reasonable to expect that AGS would re-evaluate the existing arrangements if it grants the applicant's request. AGS has made a submission to this Office that supports and confirms  the HSA's assertion. The HSA says that any re-evaluation of existing arrangements would have adverse implications for how the HSA currently investigates potential breaches of health and safety laws and on its ability to prosecute breaches. It says that this, in turn, would have adverse implications for the public, victims of workplace injuries and their families and for the Exchequer. 

The applicant's arguments

The applicant says that the record is particular to him. He says that the lengthy investigation that affected him has concluded, that he has not been charged with any offence and, thus, that access to the record cannot prejudice that investigation. He argues that, as each investigation is conducted on its own merits, disclosure of records concerning one investigation cannot prejudice future investigations. 

The applicant says that he does not recall the record having been shown to him during the investigation, although another record (not under review) states that this was the case. He also asks why he should not get access to the record under FOI if he has been shown it already. He questions why the record should continue to be held by the HSA, which he says enables it to sidestep its responsibilities under FOI by claiming privilege because of a formal arrangement with a third party. He says that the record is either covered by the FOI Act or should be returned to AGS or destroyed. He says that the HSA website does not refer to agreements with AGS and outlines why he is unhappy with the investigation. He argues that information about him that was published in media articles came from the HSA and AGS, and that the HSA is being cavalier in not making the record available to him. He says that he has a right to be forgotten and is entitled to know that information about him cannot be provided to third parties. Finally, he says that the HSA must be held to account for the information it possesses, and that it should be accountable to those whose information it holds, including making such information available to those parties. 

Analysis

It is not this Office's function to judge the effectiveness of the HSA's procedures or methods for performing its functions. While I make no comment on the appropriateness or otherwise of the position taken in regard to co-operation between the two bodies, I am prepared to accept based on the submissions made that to direct access under FOI to the Exhibit, which if held by AGS would not be subject to FOI, could reasonably be expected to prompt AGS to review its part in the arrangements agreed between it and the HSA that enable the HSA to perform its statutory functions. In this regard, the grant of access to a record under FOI is generally accepted to be the equivalent of the record's publication to the world at large in that there is no provision for restricting the use of any record released to the applicant under FOI. 

Accordingly, I accept that to direct access to the record could reasonably be expected to prejudice the procedures or methods employed by the HSA for the conduct of its investigative functions. I find that section 30(1)(a) applies to it. 

Section 30(2) - the public interest

Section 30(2) provides that a record, which is otherwise exempt under section 30(1), may be released if, on balance, the public interest would be better served by granting rather than by refusing to grant access to the record concerned. 

On the matter of where the public interest lies, I have had regard to the comments of the Supreme Court inThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 (the Rotunda case, available onwww.oic.ie). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. Although these comments were made in relation to another provision of the FOI Act, they are relevant to consideration of public interest tests generally. 

Furthermore, McDermott J., in his December 2016 judgment in the case of F.P.and the Information Commissioner[2014 No. 114 MCA] (the F.P. case), said that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that "the -�public interest-� in granting access is not to be determined on the basis of the appellant-�s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.-� 

Accordingly, I cannot take into account any personal interest that the applicant may have in gaining access to the record. Neither is it relevant to my consideration of the public interest that the record does, in fact, relate to him. Any entitlements that the applicant may have to the record outside of the FOI Act do not, of themselves, entitle him to access to it under the Act. Finally, it is not part of my remit to examine the adequacy of the investigation carried out by the HSA and AGS, or whether journalists may have been supplied with information about the applicant (which, for the sake of completeness, is denied by the HSA). It is clear from the High Court findings set out above that the applicant's desire to rectify failings he perceives on any FOI body's part in its dealings with him is not relevant to my consideration of the public interest test.

The FOI Act recognises a public interest in, as argued by the applicant, ensuring openness and accountability regarding how FOI bodies perform their functions. This public interest is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of FOI bodies, although this does not mean that such circumstances of themselves determine the matter. While it is not part of my role to determine if, in fact, the applicant was shown the record in the course of the investigation, I accept that this public interest would be at least further served to some extent by the grant of access.

On the other hand, section 30(1)(a) represents a public interest in,inter alia,preventing prejudice to procedures employed for the conduct of investigations carried out by or on behalf of an FOI body. The HSA argues that sections 34 and 49(1)(b) of the Safety, Health and Welfare at Work Act 2005 Act reflect true public interests that must be taken into account. In this regard, section 34(1)(d) provides that one of the HSA's functions is "to make adequate arrangements for the enforcement of the relevant statutory provisions", while section 49(1)(b) concerns the requirement on the body's CEO to report on the economy and efficiency in the use of its resources. In any event, I consider that there is significant weight attaching to the public interest in ensuring that the HSA can effectively perform its statutory functions at reasonable cost to the Exchequer, and in ensuring that it can make cooperative arrangements with other bodies to enable this. Again, while I cannot go into detail here about the nature of the co-operation and sharing of information involved, I am satisfied that it would not be in the public interest that existing  arrangements between the HSA and AGS should be discontinued or restricted. 

Having carefully considered the matter, I find that the public interest would, on balance, be better served by refusing to grant access to the record rather than by granting access. In the circumstances, there is no need for me to consider the other provisions of the FOI Act relied on by the HSA in this case. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSA's refusal of the applicant's request under section 30(1)(a) of the FOI Act. 

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal. 

Elizabeth Dolan
Senior Investigator