Dr. H and Health Service Executive [2024] IEIC 116806 (19 July 2024)

Background
Scope of Review
Preliminary Matters
Analysis and Findings
Decision
Right of Appeal

Whether the HSE was justified in refusing access to records, in full or in part, relating to changes to reimbursement arrangements for GPs under the Opioid Substitution Treatment (OST) scheme on the basis of sections 30, 35, 36 and 37 of the FOI Act, and its effective reliance on section 15(1)(a) in relation to the existence of additional records

19 July 2024

Background

By way of background, this case relates to payments made under the OST scheme by the Primary Care Reimbursement Service (PCRS), which is part of the HSE. As set out on its Website , the PCRS processes payments to general practitioners (GPs), dentists, pharmacists and other professionals who provide free or reduced cost services to the public on behalf of the HSE.

Under the OST scheme, participating GPs are contracted by the HSE and paid fees to treat registered patients. Registered GPs can be Level 1 or 2, which relates to their level of training, experience and the number of patients they can treat under the scheme. Treatment includes prescribing opioid substitution drugs such as Methadone and Suboxone.

I understand that the first OST scheme was established under S.I. No. 225/1998 - Misuse of Drugs (Supervision of Prescription and Supply of Methadone) Regulations, 1998, which related solely to Methadone, and that the Misuse of Drugs (Supervision of Prescription and Supply of Methadone and Medicinal Products containing Buprenorphine authorised for Opioid Substitution Treatment) Regulations 2017 (SI No. 522 of 2017) updated and replaced the original scheme. I also understand that, since 2017, the OST scheme has covered Methadone and drugs which contains Buprenorphine, including Suboxone.

In a request dated 12 October 2021, the applicant sought access to the following records:

1. A copy of the PCRS' internal guidelines or instructions in relation to the reimbursement of GPs for prescribing Suboxone under the OST scheme,

2. All PCRS communications with the National Clinical Lead or any other HSE non-PCRS staff relating to reimbursement arrangements,

3. Any documents authorising full rate reimbursement of individual Level 2 GPs for Methadone or Suboxone claims for more than 35 patients,

4. Any documents authorising additional or supplementary reimbursements to three named GPs.

In a decision dated 5 November 2021, the HSE stated that it "must deny" the applicant the "level of detail" he requested in relation to points 1 and 4 of his request. Nonetheless, it identified four relevant records. The HSE identified one record relating to part 1, an internal procedures document, which was not numbered by the HSE, which it refused to release in full on the basis of section 30 of the FOI Act. It identified three records relating to the remaining parts of his request, which it refused to release in part on the basis of sections 36 (record 3) and 37 (records 1, 2 and 3). The HSE stated that statutory instruments were the "underpinning legislation that [the HSE] uses to implement [its] payment practices" and that it was its practice to transpose the content of the relevant statutory instrument into a circular to the relevant primary care contractors. On this basis, it enclosed a copy of two circulars relating to the OST scheme as follows: GP Circular 012-18 Suboxone - Methadone and Pharmacy Circular 013-18 Opioid - Methadone.

The applicant sought an internal review of the HSE's decision. In a letter dated 26 November 2021, the HSE varied its original decision in relation to part 1 of the applicant's request and released an additional record which had been located during the internal review. The internal reviewer also referred to an additional circular: 001-08 Methadone Circular 001-08 Methadone Circular, which he said was available on the PCRS website. The internal reviewer did not address parts 2 and 3 of the applicant's request, as he was of the view that the applicant was satisfied with the HSE's initial decision in this regard. The HSE stated that it affirmed its original decision in respect of part 4. However, it also stated that it was relying on section 35(1)(b) and, in particular, section 35(4) of the FOI Act, which is known as a "neither confirm nor deny" provision, in relation to its refusal to grant access to records relating to this part of the applicant's request.

On 2 December 2021, the applicant applied to this Office for a review of the HSE's decision.

During the course of this review, I contacted the HSE and asked it to provide details of the establishment of the scheme and of its extension to Suboxone. While the HSE provided further submissions, it has not identified any additional records setting out the parameters of the scheme or its extension beyond 35 patients per GP other than those set out above. Accordingly, it appears as though section 15(1)(a) is relevant.

The HSE provided a new records schedule (see below) to this Office during the review, which used a different numbering system than that previously provided to the applicant. Some of the records listed were responses to the applicant's requests (records A, B, and I) or copies of unredacted versions of records provided to this Office for the purposes of this review (records K and L). Having carefully examined the records in question, I am satisfied that records A, B, I, K and L are outside the scope of this review. For ease of reference, I will adopt the most recent numbering system used by the HSE in relation to the remaining records as follows:

● Record C (1): an email dated 19 March 2020 with one attachment - part granted on the basis of section 37

● Record D (2): an email dated 19 March 2020 - part granted on the basis of section 37(1)

● Record E (3): an email dated 23 March 2020 - part granted on the basis of sections 36(1)(b) and 37(1)

● Record F : GP circular 001/08 - released in full

● Record G : GP circular 012/18 - released in full

● Record H : Pharmacist circular 013/18 - released in full

● Record J : an email dated 21 July 2020 - released in full

● Record M : internal procedures document - refused in full on the basis of section 30(1)(a)

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 applicant's comments in his application for review, to the correspondence between the parties to this review and to the submissions made by the HSE in support of its decision. I have also had regard to the content and context of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

As noted above, the HSE's internal review did not address parts 2 and 3 of the applicant's request, as it appeared to be of the view that he was satisfied with its responses in relation to these parts. However, while the applicant's internal review request did not refer specifically to points 2 and 3, it seems to me that there was likely to be some overlap in the categories of records sought in this case. Furthermore, I am satisfied that references made by the applicant in his internal review request concerning a comment in one of the records released in part could also be considered to relate to parts 2 and 3 of his original request.

Having carefully examined the records concerned, I am also satisfied that certain information withheld from pages 2 and 3 of record E is outside the scope of the applicant's request. This information will not be considered as part of this review.

Accordingly, this review is concerned solely with whether the HSE was justified in refusing access to records C and D in part on the basis of section 37, record E in part on the basis of sections 36 and/or 37, record M in full on the basis of section 30, records relating to part 4 of the applicant's request on the basis of sections 35(1)(b) and/or 35(4), and in its effective reliance on section 15(1)(a) to refuse access to additional records relating to the applicant's request.

Preliminary Matters

In his correspondence with this Office the applicant referred to various concerns he had about the extension of the OST scheme. It is important to note, as a preliminary matter, that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Furthermore, section 13(4) of the FOI Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.

It is also important to note that section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the HSE to satisfy this Office that its decision to refuse access to the records sought, either in whole or in part, was justified. However, that is not the end of the matter. As well as the presumption set out in section 22(12)(b), I must also have regard to the findings of the Supreme Court inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet Case"). In that case, the Court noted that while the presumption places an onus on the FOI body to justify refusal, that does not mean that the conclusion is always that disclosure is to be ordered. Rather, I must consider the content of the records sought and the interests engaged, which might suggest either disclosure or refusal.

Analysis and Findings

Section 15(1)(a) - do further records exist?

In its internal review decision, the HSE stated that the PCRS issues guidelines to GPs that it reimburses for operating public health schemes on the HSE's behalf. It stated that the PCRS operates various schemes in accordance with the guidelines, which are issued as circulars, that are underpinned by the relevant statutory instruments. The HSE also referred to "specific measures under the Recommendations of the Irish College of General Practitioners' Task Group on Drug Misuse May, 1997" and said that these measures and the relevant GPs' contracts "stipulated the level of training required by GPs to operate the scheme and the number of patients they may take on". The internal reviewer stated that a change to how the relevant measures were applied arose during the Covid-19 pandemic, and that this was the substance of the correspondence released in the HSE's original decision. He said that, following further searches, a letter from the National Contracts Office affirming the arrangement introduced during the pandemic was located, which was released to the applicant (record J). The internal reviewer stated that he had not found "evidence of any such special arrangement prior to this".

In his application for a review to this Office, the applicant referred to the relevant circulars identified by the HSE as set out above. He noted that Circular 01/2008 predated the introduction of Suboxone as a treatment and that Circular 12/2018 referred "only to the process whereby patients receiving Suboxone treatment are to be registered alongside those receiving methadone treatment on the HSE's Central Treatment List", and related administrative matters. He also noted that neither Circular related to reimbursement issues.

During the course of this review I wrote to the HSE and notified it that my reading of the applicant's original request was that he sought records relating to the reimbursement of Suboxone claims under the opioid treatment scheme which was initially set up in relation to Methadone alone. I said that it seemed to me that the applicant was seeking access to records which relate to the decision to include Suboxone in the scheme and/or to allow full reimbursement for 10 Suboxone patients per qualifying GP in addition to 35 Methadone patients. I also drew its attention to record J (an email from the HSE to the IMO which was released at internal review stage) which referred to previous correspondence between the parties on 7 and 17 July 2020, and noted that it might be relevant to the matters at hand.

I also referred to the applicant's internal review request which commented on the absence of records relating to what appeared to be an earlier decision to allow a full rate reimbursement of 10 additional Suboxone patients per GP. I referred to the following exchange between two HSE officials on 19 March 2020 (quoted in records C, D and E, released in part):

"-� I know that we had previously said that a level 2 GP with 35 patients on Methadone could receive full payment for up to 10 patients to receive Buprenorphine/Naloxone. Perhaps this could be extended to 10 extra Methadone patients also?"

On the basis of the above, I informed the HSE of my view that it appeared as though additional records should exist relating to the applicant's request.

Records relating to reimbursement under the scheme generally

During the review, this Office asked the HSE to set out the background to the extension of the scheme to the drug Suboxone. In its response, the HSE provided details of the establishment of the original Methadone scheme in 1998. It stated that when the 1998 Regulations were replaced by the 2017 Regulations, the HSE issued an updated prescription form relating to the new scheme. It also stated that the regulations and guidelines around Methadone "transferred over" to the new scheme.

This Office also asked the HSE to provide a copy of records setting out the details of GP reimbursement under the scheme or, in the alternative, to provide a submission having regard to section 15(1)(a) if it was its position that they did not exist.

In response, the HSE provided a copy of two documents:

● "The Introduction of the Opioid Treatment Protocol" (2010), which refers to the number of patients that Level 1 and 2 GPs can treat under the scheme (page 8) and includes a recommendation that the maximum number or cap should be raised (Level 2 GPs) or removed (Level 1 GPs) (page 35).

● The Irish College of General Practitioners (ICGP) "Methadone Protocol Treatment Information Pack", which refers to a prescribing GP providing treatment of "up to the maximum of 35 patients" under the OST scheme.

While the HSE is correct in stating that both documents "reference the ceiling of 35 patients for level 2 Methadone GP[s]", neither document appears to establish or set out the parameters of the scheme. Furthermore, none of the records released by the HSE or provided to this Office for the purposes of this review purport to establish the number of qualifying patients for which a GP will be fully/partly reimbursed under the Methadone or Opioid Substitution Schemes, or to set out the fee rates themselves.

Records relating to reimbursement for more than 35 patients per qualifying GP

During the review, I asked the HSE to explain the reference in the email quoted above, which appeared to relate to a previous decision to extend the number of full rate reimbursements under the scheme by adding 10 additional Suboxone patients to 35 Methadone patients per prescribing GP. In response, the HSE stated that the author of the email had confirmed "that he holds no details regarding this arrangement". The HSE also stated that it checked with the Chief Pharmacist, Department of Health who it stated "would hold the details of such an increase" and she confirmed that she had searched her archives again in relation to the relevant time period and hadn't retrieved "anything more to provide under this FOI". The relevant HSE FOI Liaison Officer also stated that as she had not been furnished with any evidence to the contrary, it was her view that "previously" in the email referred to the "pandemic and emergency arrangements that may have been needed/required to accommodate a very marginalised cohort of the population".

In addition, I asked the HSE to explain how decisions to extend the terms of such a reimbursement scheme are made and what records it would expect to exist in these circumstances. The HSE stated that a change to the IT system to allow for payment in respect of more than 35 patients per GP under the scheme would need to be approved by a senior manager. It said that the four senior managers in the relevant area were asked to search their files for relevant records, as they were "the only people who would know the details". Its position was that no additional relevant records were located.

Analysis

I accept that the emergency conditions arising during the Covid-19 pandemic could reasonably be expected to give rise to ad hoc arrangements, including extensions to the parameters of schemes such as the OST scheme. I understand that there is a maximum number of patients for which a level 2 GP can be paid the full rate on the HSE's systems. I am willing to accept that the rules established as part of the scheme might have been built into the PCRS's systems. However, the HSE has also informed this Office that payments can be processed as exceptions on the system, subject to the appropriate approval. In the circumstances where public funds are being spent under a particular scheme and where different rates appear to be payable to GPS under the scheme, and where there appears to be a cap on the maximum number of patients, I would expect the relevant public body to have written instructions, processes and/or guidelines in place to ensure that the correct fee was paid to qualifying recipients in line with the established rates, caps or maximum numbers allowed.

Furthermore, I do not accept the HSE's explanation as set out above in relation to the wording of the email concerned. Based on the natural and ordinary meaning of the words used, it seems clear to me that, at some point in time, a change to the arrangements in place for reimbursing Level 2 GPs for a maximum of 35 patients under the OST scheme at the full rate was made. It is not clear from the email when this change came into force. However, the records released show the approval of the Assistant National Director of the PCRS for the request to extend the scheme again. It is clear that, even while people were working from home, during a global pandemic, approval was required to extend the scheme. Yet no official documents setting out the scheme's rules or rates of payment have been located by the HSE during the course of this review. In this regard, while I note that record M was identified as relating to part 1 of the applicant's request, it does not set out the specific rates or caps on payments under the scheme.

While the HSE has provided substantial search details in its submissions to this Office, it has not satisfied me that no additional records relating to the PCRS' internal guidelines or instructions in relation to the reimbursement of GPs for prescribing Suboxone under the OST scheme, exist or cannot be located once all reasonable steps have been taken to locate their whereabouts. Neither has it satisfied me that no additional records exist relating to the additional reimbursement for 10 Suboxone patients per qualifying GP as well as 35 Methadone patients, as referenced in the email quoted above. It seems to me that a statutory scheme is usually set out clearly, especially when public funds are involved, and that any updates or changes to such a scheme should be set out equally as clearly. While it may be the case that this did not happen in this instance, the HSE has not adequately explained how and when the scheme was first established and subsequently changed. Accordingly, I find that the HSE was not justified in its effective reliance on section 15(1)(a) to refuse access to further records relating to parts 1, 2 and 3 of the applicant's request. I direct the HSE to process his request afresh and to carry out a new decision-making process in relation to parts 1, 2 and 3.

Section 30

The HSE refused access to record M on the basis of section 30(1)(a) of the FOI Act. This section provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could 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 the conduct thereof. Section 30(2) provides that the exemption does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the request.

Where an FOI body relies on section 30(1)(a) to refuse access to a record, it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure, and having identified that harm, consider the reasonableness of any expectation that the harm will occur. In examining the merits of an FOI body's view that the harm could be reasonably expected, I do not have to be satisfied that such an outcome will definitely occur. The test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable. It is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations.

Record M is a single page document headed "Strictly for internal use only" which sets out how claims under the scheme are to be processed/reimbursed. I note that the record does not refer to any establishing circulars or regulations. Nor does it include details of the rates to be paid or the number of patients for which a GP can be reimbursed at a particular rate.

HSE's submission

In its submissions to this Office, the HSE said that the PCRS had reimbursed over €3.3 billion in the previous year under various community schemes, including the OST scheme. It also said that one of the main functions of the PCRS is to validate claims presented for reimbursement. The HSE stated that the PCRS has standard operating procedures (SOPs) and internal guidelines in place for all of these schemes. In relation to the internal guidelines set out in record M, it stated that this document was solely intended to be used internally by HSE staff. It stated that the record was intended to assist staff when issues arise during the processing of claims or in identifying invalid or irregular claims. The HSE stated that such controls are there to ensure that only valid claims are authorised and paid, which it described as an integral part of the PCRS's work.

The HSE's position is that the release of any of the PCRS's internal guidelines, instructions, or SOPs in relation to reimbursement under the schemes managed by the PCRS, could pose a risk to its oversight procedures, investigations, audits and inquiries. It was of the view that the release of such internal guidelines could be extremely prejudicial to the work and functioning of the PCRS which "ultimately ensur[es] the safeguarding of public funds". It stated that release of the record concerned could "undermine [the PCRS's] ability to ensure [that] only bona fide claims are processed and paid". The HSE stated that the PCRS has never released information that could "assist contractors to manipulate claims submitted for payment to their favour". It also stated that the release of such records could disclose positions and/or procedures taken by the PCRS in the course of performing its duties.

Applicant's submission

In his internal review request, the applicant stated that he did not accept that any of the grounds specified under section 30(1) could "be applied reasonably" to the records withheld by the HSE. His position was that it is in the public interest that all records concerning the system of reimbursement of doctors prescribing Suboxone under the scheme are fully disclosed.

Analysis

Having examined the content of the record, I am satisfied that it relates to tests, investigations or inquiries conducted by or on behalf of the HSE or related procedures or methods employed by the PCRS for the purposes of section 30(1)(a). However, it is important to note that section 30(1)(a) is a harm-based exemption. A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. A claim for exemption pursuant to section 30(1)(a) which is class-based is not sustainable e.g. a claim for exemption for "any" SOP or procedures document.

The HSE has stated that the release of its internal guidelines in this case could reasonably be expected to prejudice the effectiveness of the PCRS' tests, investigations or inquiries, or related procedures or methods when validating or processing claims for reimbursement. It seems to me that the HSE is essentially arguing for the protection of internal PCRS claim processing guidelines as a class under section 30(1)(a). As I have outlined above, such an argument is not sustainable.

I would be willing to accept that there may be circumstances where such internal documents contain detailed fraud avoidance procedures, whose release would allow the circumvention of such measures. However, having regard to the actual content of the record at issue in this case, I find it very difficult to accept that the release of the record in question could reasonably be expected to prejudice the effectiveness of the PCRS' control and validation processes generally or the procedures or methods employed for their conduct.

The record concerned seems to me to be quite straightforward and procedural in content. Furthermore, in its submissions to this Office, the HSE has not pointed to any particular information in the record concerned, the release of which could undermine the PCRS' ability to ensure that only valid claims are reimbursed. Having regard to the specific content of the record at issue, I am not satisfied that the HSE has justified its decision to refuse access to this record on the basis of section 30(1)(a). Accordingly, I find that section 30(1)(a) does not apply to record M. As I have found section 30(1) not to apply, I am not required to consider the public interest test at section 30(2).

As the HSE has not relied on any other exemption to withhold access to this record, I direct the release of record M to the applicant.

Section 37

The HSE redacted a small amount of information from records C, D and E, under section 37 of the FOI Act, on the basis that it is the personal information of third parties other than the requester. All three records are part of the same email thread sent during the early days of the Covid-19 pandemic. The emails concern a request to extend the OST scheme so that a number of named Level 2 GPs could be reimbursed at the full rate for more than 35 patients.

The HSE withheld access to the office and mobile telephone numbers and email address of the National Clinical Lead for Addiction Services from all three records. It also withheld access to the names and addresses of various GPs contained in record E.

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of third party personal information. Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information, including (ii) information relating to the financial affairs of the individual and (iii) information relating to the employment or employment history of the individual.

Paragraph (I) of section 2 of the FOI Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid ...". Similar information is excluded in the case of service providers under Paragraph (II) of section 2.

Section 2 of the FOI Act provides that service provider means "a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI Body under a contract for services and contract for services includes an administrative arrangement between an FOI body and another person".

However, it is important to note that Paragraphs (I) and (II) do not provide for the exclusion of all information relating to such directors, staff, office holders or service providers. I take the view that this exclusion is intended to ensure that section 37 will not be used to exempt the identity of such a person in the context of the particular position held or any records created by the staff member, director, office/position holder or service provider while carrying out his or her official functions.

The GPs' details

The substantive information withheld from release in record E comprises the names and addresses of individual GPs and, in some cases, the number of patients they were treating under the scheme at the relevant time.

In the context of the records, which discuss the extension of the scheme, I am satisfied that the information relates to an extension of the terms of a contract or administrative arrangement between the HSE and the named GPs. In my view, the GPs concerned appear to be acting as service providers under section 2 of the FOI Act. Therefore, it appears that, on the face of it, the names of individual GPs and any details relating to relevant contract terms are specifically excluded from the definition of personal information by virtue of the exclusion at Paragraph (II) above.

However, that is not to say that the details of the precise number of patients each GP is treating, or that they are Level 2 GPs for the purposes of the OST scheme, necessarily qualifies as a term of a contract within the meaning of the exclusion. I take the view that the exclusions contained in the definition of personal information are intended to prevent FOI bodies from relying on section 37 to refuse to grant access to records created by individual staff members or service providers in the course of their work. They do not deprive public servants, or individual contractors, of the right to privacy generally.

Furthermore, I consider that when considering the exclusions, a distinction must be drawn between the role of a staff member or contractor as a provider of a public service which is subject to oversight, and the privacy rights of those same individuals regarding their private employment and financial affairs. In my view, the plain language of the FOI Act strikes this balance by excluding work and role related functions from the definition of personal information, but including details relating to matters such as personnel files and financial affairs.

Record E identifies a number of GPs who were, apparently, acting as Level 2 prescribers under the OST scheme. It is my understanding that to become a registered Level 2 GP under the scheme, a GP has to have practised at Level 1, have completed at least one successful online audit and a Certificate Course in Management of Addiction in Primary Care and must have agreed to commence their first five inductions of treatment under the supervision of a mentor . Some or all of the GPs listed had, presumably, sought to have the number of patients they could treat in return for the full reimbursement rate increased at the relevant time. In the circumstances, I am satisfied that the fact that their names are listed in the records concerned reveals more than just that they were providing services under contract for the HSE. I consider that the release of individual GP's names in the context of these records would also reveal information relating to their individual employment or employment history, as well as their individual financial affairs.

In the circumstances of this case, I am satisfied that each individual's status as a Level 2 GP derives from some personal aspect of their career and experience such that it comprises personal information. I am also satisfied that their names and addresses contained in a record relating to the extension of the scheme, in circumstances where there have been allegations that there was an issue with the way in which this was administered by the HSE, relates to the personal information of the individuals concerned rather than to the functions of the service providers in question.

On that basis, I consider that the release of the information in question would reveal more than an insight into how the HSE was administering the scheme, and instead would disclose details of the individual GPs' employment history and financial affairs.

Given the context of the request and the content of the records at issue, I find that the exception does not apply in this case and that the disclosure of the names and contact details of the GPs contained in the records would involve the disclosure of personal information relating to the individuals concerned and that section 37(1) applies.

Contact Details of the National Clinical Lead

The HSE also withheld access to the contact details of the HSE's National Clinical Lead - Addiction Services, including an email address, landline and mobile phone numbers from records C, D and E. I also note that the withheld email address appears unredacted elsewhere in the records released. The landline also appears to have been published in letters from the NSIO in response to PQs, which are publically available.

Having regard to the exclusion at Paragraph I of the definition of personal information in section 2 of the Act referenced above, I do not accept that the office telephone number and email address of the relevant staff members comprises personal information. I am of the view that where contact information for a staff member, for example an email address or the direct phone line of a staff member, is provided to the staff member by virtue of the position that staff member holds within the Department it cannot generally be considered to be the personal information of the individual. As such, on the basis of the exclusion from the definition of personal information provided for in Paragraph (I) of section 2 of the Act, I find that the direct line telephone number and email address of the staff member contained in record C, D and E are not personal information and accordingly, that section 37(1) does not apply to this information. I accept, however, that the mobile phone number of the staff member of an FOI body can be considered personal information in a way that a fixed direct line phone number at a place of employment cannot. While mobile phones may be used in the course of carrying out their staff functions, they may also be used outside of working hours and as such their use may not be confined solely to matters related to the position they hold as a member of staff. Accordingly, I find that section 37(1) applies to the mobile phone number withheld by the HSE in this case.

Sections 37(2) and 37(5)

The fact that I have found section 37(1) to apply to the GPs' names and contact details and the staff member's mobile telephone number is not the end of the matter as the section is subject to sections 37(2) and 37(5).

Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply.

Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. No argument has been made that the release of the records to the applicant would benefit the third parties shown in the records concerned, nor is it apparent to me how release would do so. I am satisfied that subsection (b) does not apply in the circumstances of this case.

Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.

Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, such as under sections 37(2)(a), and 37(8) (which I

consider below), FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.

All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.

In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in the Enet case. In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and "there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure". Although the Court's comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

The HSE's internal review decision stated that it identified, as public interest factors in favour of the release of the information sought, the public interest in public bodies being open and transparent, as well as the right of the public to access information.

In his application for an internal review, the applicant stated that it was in the public interest that all records concerning the system of reimbursement of doctors for Suboxone prescribing were fully disclosed. In his application to this Office, he stated that as Methadone treatment was "readily available in Ireland at this stage", and that "many thousands" were receiving such treatment, that there could be "no current basis for concerns about addicts 'targeting' doctors in the manner suggested". While the applicant made no further public interest arguments in favour of the release of the records sought, he stated that there were "substantial sums of public funds involved" and, as noted above, appeared to be of the view that there were issues in how the scheme was administered.

It seems to me that the thrust of the applicant's arguments is reflective of a public interest in ensuring that the HSE is appropriately administering a publically-funded opiate substitution scheme.

On the other hand, the FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).

In its internal review decision, the HSE stated that it withheld access to mobile telephone numbers to ensure that the individual concerned was not bombarded or targeted with nuisance emails or telephone calls. It argued that in some cases this could mean that telephone numbers may have to be changed. Essentially, the HSE was of the view that the use of Methadone, or other similar drugs, was controversial and it referred to protests arising from a suggestion that an OST clinic be placed in a particular area. The HSE said that if the telephone numbers of doctors engaged in the OST scheme were placed in the public domain, it was reasonable to believe that "they may receive unwanted contacts". It also stated that some participating doctors and their staff had been "abused verbally/assaulted over the years". However, while this may be the case, none of the records provided to this Office contained the telephone number of individuals other than the staff member referenced above.

The HSE also stated that it considered the following public interest factors against release, such as the possibility of harm to the competitive position of GPs operating in a commercial environment and the public interest in maintaining the number of health providers willing to enter into contracts with the HSE.

Analysis

I have accepted above that the names and addresses of the GPS contained in the records and the mobile telephone number of a staff member comprises personal information under the FOI Act. I am satisfied that each of these identifiable individuals has a right to privacy. However, I am also satisfied that while the right to privacy is protected by the Constitution, the protection afforded is a spectrum.

In that regard, it seems to me that there is a difference between the right to privacy of, say, patients of the GPs in question who are availing of the scheme, and the names and details of the same GPs providing the relevant services on behalf of the HSE under a contract for services. That is not to say that a staff member or a service provider has no right to privacy, but rather that the content and context of the records concerned would have to be considered when weighing the public interest factors at play.

I have carefully examined the remaining information in question. Based on the information available to me, it seems to me that the personal information of such individuals contained in the records is not particularly sensitive. Accordingly, I am satisfied that the weight accorded to the right of privacy of these individuals would not be as strong as that accorded to say, details of any identifiable patients contained in the same records.

However, I must also consider that, as noted above, release under FOI is the equivalent to release to the word at large. Furthermore, in this case, I do not consider that there is a strong weight in favour of the release of the information withheld under section 37. The applicant has not explained how the particular information withheld will shed any significant light on the HSE's management of the scheme in question, and nor is this apparent to me from the records concerned. It also seems to me that the information in question would provide limited insight into the administration of the scheme or into how the HSE carried out its functions in this regard. In the circumstances of this case, it is unclear to me how the release of these specific records in full would further the public interest identified above.

Having regard to the above, and in light of the strong protection afforded to privacy rights under the FOI Act, I cannot discern a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the GPs' names and contact details in this case. Accordingly, I find that the public interest in the release of the information in question for the purposes of ensuring that the HSE is adequately administering the OST does not outweigh the right to privacy of the individuals concerned. I find, therefore, that section 37(5)(a) does not apply in this case.

Having regard to the above, I find that the HSE was justified in refusing access, under section 37(1) of the Act, to the information relating to the individuals listed in record E and to the mobile telephone number of the staff member withheld from records C, D and E.

As I have found the information relating to the identifiable GPs to be exempt under section 37 of the FOI Act, I do not need to consider the HSE's reliance on section 36 to withhold access to the same information.

Section 35(4) - neither confirm nor deny

In its internal review decision, the HSE sought to rely on section 35(4) of the FOI Act in respect of records relating to part 4 of the applicant's request, which concerned records authorising an extension of patient numbers under the OST scheme to specified doctors understood to be operating the scheme on behalf of the HSE.

Section 35 relates to information given to an FOI body in confidence. Section 35(4) is a mandatory provision which provides for the refusal of a request for access to a record and for the refusal to disclose whether or not such a record exists, provided the requirements of the subsection are met. This is called a 'neither confirm nor deny' provision. It applies where it is the disclosure of the existence or non-existence of the record - as opposed to disclosure of the contents of the record - that would have the effect specified.

The HSE stated that information concerning particular doctors involved in the provision of services under the OST scheme was treated by the PCRS as "confidential and-� not releasable" in order to "protect their identities and their practices" in case they were targeted by drug users. It stated that it would therefore neither confirm nor deny if there was any correspondence with particular doctors operating the OST scheme. It also stated that part 4 of his request was therefore refused and that section 35(1)(b) and 35(4) of the FOI Act referred.

However, it does not appear to be sustainable for the HSE to seek to rely on this exemption in relation to records in its internal review when this exemption was not relied upon in its original decision. As noted above, the original decision maker merely stated that he could not provide the "level of detail" sought in relation to points 1 and 4 of the applicant's request. Furthermore, the HSE has made no further arguments in its submissions to this Office in support of its reliance on section 35(4).

In the circumstances, I cannot find that the HSE was justified in refusing to confirm or deny whether records exist relating to part 4 of the applicant's request under section 35(4). Accordingly, I find that section 35(4) does not apply and I annul its decision to refuse part 4 of the applicant's request under section 35(4) of the FOI Act.

I should state that as I have found the names and contact details of the GPs listed in record E to be exempt under section 37 above, I am satisfied that any records which might exist relating to part 4 of the applicant's request would relate to the personal information of the GPs in question and would therefore be exempt under section 37(1) of the FOI Act. On that basis, while I have found that the HSE was not justified in relying on section 35(4), I do not consider it necessary to remit that part of its decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE's decision. I annul its effective reliance on section 15(1)(a) in relation to records concerning the extension of the OST scheme to include drugs such as Suboxone and direct it to carry out a new decision-making process on parts 1, 2 and 3 of the applicant's request. I find that it was not justified in refusing to grant release to record M on the basis of section 30(1)(a) and I direct its release to the applicant. I find that the HSE was justified in refusing to grant access to certain information contained in the records on the basis of section 37(1), as it comprises third party personal information. I find that, on balance, the public interest does not favour the release of this information.

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Sandra Murdiff

Investigator

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	Irish Information Commissioner's Decisions
You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Dr. H and Health Service Executive [2024] IEIC 116806 (19 July 2024) URL: http://www.bailii.org/ie/cases/IEIC/2024/116806.html Cite as: [2024] IEIC 116806

Irish Information Commissioner's Decisions

Dr. H and Health Service Executive

Background

Scope of Review

Preliminary Matters

Analysis and Findings

Section 15(1)(a) - do further records exist?

Section 30

Section 37

Section 35(4) - neither confirm nor deny

Decision

Right of Appeal