Mr K and National Treasury Management Agency [2024] IEIC 151237 (25 November 2024)

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

Whether the NTMA was justified in refusing access, pursuant to Schedule 1, Part 1(w)(ii) of the FOI Act, to records relating to the birth of the applicant-�s daughter on the basis that the FOI Act does not apply to the records sought

Background

The NTMA is a State body which operates with a commercial remit to provide asset and liability management services to Government. The NTMA is designated as the State Claims Agency (SCA) when performing the claims management, risk management, and legal cost management functions delegated to it under the National Treasury Management Agency (Amendment) Act 2000 and the National Treasury Management Agency (Amendment) Act 2014.

In a request dated 28 May 2024, the applicant sought all correspondence between the NTMA and the HSE -�regarding the HSE's failure to comply with its statutory obligations to inform the NTMA/State Claims [Agency] about its negligent mismanagement of my daughter-�s birth-�. The applicant attached a letter from the then Chief Medical Officer (CMO) concerning the matter. On 12 July 2024, the NTMA refused the applicant-�s request on the ground that the FOI Act does not apply to the records sought, as it is only a partially included FOI body when performing its functions as the State Claims Agency, as set out in Schedule 1, Part 1(w)(ii) of the FOI Act. On the same date, the applicant sought an internal review of the NTMA-�s decision, which it subsequently affirmed on 2 August 2024. On 14 August 2024, the applicant applied to this Office for a review of the NTMA-�s decision.

The applicant contends that the HSE failed to uphold its statutory duty to report incidences to the NTMA and that it is in the public interest to release the records sought, claiming the NTMA was acting in a manner that protected HSE management from investigation of statutory failings. He said an investigation was necessary to determine if there were other instances of the HSE failing to inform the NTMA/State Claims Agency of adverse incidents as soon as may be.

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 correspondence outlined above and to the submissions made by both parties during the course of this review. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is solely concerned with whether the NTMA was justified in its decision to refuse access to the applicant-�s request dated 28 May 2024 on the basis that the FOI Act does not apply to the records sought, pursuant to Schedule 1, Part 1(w)(ii) of the Act.

I understand that the applicant made a similar request to the NTMA on 7 May 2024 and that the NTMA issued a decision in response to that request on 4 June 2024. As noted above, this review is solely concerned with the NTMA-�s decision concerning the applicant-�s request of 28 May 2024.

Preliminary Matters

Section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that I cannot have regard to the applicant-�s motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as genuine public interest factors in favour of release of the information where the FOI Act requires a consideration of the public interest, which is not relevant in this case.

Secondly, it is also important to note 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.

Analysis and Findings

Schedule 1, Part 1 of the FOI Act - Partially included agencies

It is important to state at the outset that the FOI Act applies only to a very limited category of records held by the NTMA. Regardless of an applicant-�s view as to whether there may be compelling grounds for believing that the records sought should be released, if the Act does not apply to the records sought, then no right of access exists and this Office has no further role in the matter.

Section 6(2) of the FOI Act provides that any organisation specified in Schedule 1, Part 1 of the FOI Act shall, subject to the provisions of that Part, be a public body for the purposes of the Act. Schedule 1, Part 1 contains details of bodies that are partially included for the purposes of the Act and details certain specified records that are excluded. If records sought come within the description of the exclusions in Part 1, the FOI Act does not apply and no right of access exists to such records held by the body.

Schedule 1, Part 1(w)(ii) provides that section 6 of the Act does not include a reference to the National Treasury Management Agency insofar as it relates to records:

(ii) concerning the performance of its functions under Part 2 of the National Treasury Management Agency (Amendment) Act 2000, other than in relation to records concerning the general administration of those functions

Essentially, what this means is that the NTMA is not a public body for the purposes of the FOI Act with respect to records concerning the performance of its functions as the State Claims Agency (SCA), other than in relation to records concerning the general administration of those functions. In other words, the only records held by the NTMA that are subject to the FOI Act are those that relate to the general administration of the NTMA. In accordance with Part 1(w)(ii), all other records held by the NTMA relating to the core functions of the NTMA when performing those functions regarding claims against the State as the SCA are excluded.

The FOI Act does not define the term -�general administration-� as provided for in Schedule 1, Part 1(w)(ii). This Office considers the term to cover records relating to the administration of the body, as opposed to say, records relating to its operational matters or core functions. In the case of a number of specified public bodies, the right of access afforded by the FOI Act is restricted to records relating to their general administration. We consider the term general administration to refer to records which have to do with the management of a public body such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures, etc.

In its submissions to this Office, the NTMA said searches were conducted for records relevant to the request and the records located relate to the relevant claims file managed by the SCA in respect of the birth of the applicant-�s daughter and, as such, concern the performance by the SCA of its core functions.

The NTMA referred to the National Treasury Management Agency (Amendment) Act 2000 where it provided a definition of -�manage.-� Manage, according to the 2000 Act, means:

in relation to a claim, take the steps necessary or expedient for the purpose of disposing (whether by agreement or otherwise) of the claim and, without prejudice to the generality of the foregoing, includes; investigate the claim and any act, omission or other matter (and the circumstances thereof and any other matter relevant thereto) that occasioned the claim; represent the State authority concerned in a court or other tribunal in relation to the claim.

The applicant was given the opportunity to respond to the NTMA-�s submissions and make further submissions in the matter. The applicant noted that the letter from the then CMO alleging there was a delay in the HSE-�s notification of an adverse incident was dated more than two years after the birth of his daughter and, therefore, suggested that the HSE had still not yet notified the NTMA of the adverse incident. He went on to say that the NTMA had previously notified him that there was no delay in the HSE-�s notification of the adverse incident, but he had not made a claim until after an external review of the incident resulted in a report finalised in 2013. He argued that, since no claim existed prior to the 2013 report, any engagement between the HSE and the NTMA regarding his daughter-�s birth could not be in relation to the management of a claim and should be released. He said he found it extremely unlikely that the HSE notified the NTMA of the incident prior to the CMO-�s letter, which would suggest that the CMO was misinformed about a delay. He again raised the argument that it is in the public interest to reveal what he believes was a statutory failing on the part of the HSE and that the NTMA was covering up this fact. The applicant also provided a copy of a letter from the SCA dated 3 November 2022 stating that the HSE had notified it within one calendar month of the adverse incident via the National Incident Management System (NIMS) in conformity with the obligations of the HSE to report adverse incidents under legislation. The applicant described this as an unsubstantiated claim that contradicts the CMO-�s letter and any engagement between the HSE and SCA prior to his claim should be released.

The investigating officer sought further clarifying information from the NTMA explaining the definition of management in relation to a claim and when its activities become -�in relation to a claim.-� The NTMA said the range of functions contained in Part 2 of the NTMA (Amendment) Act 2000 includes the management of claims and counterclaims, the entitlement to review and/or investigate incident reports received from State authorities, the provision of advice on risk management, and the performance of other functions relating to indemnity and insurance matters. It went on to say that the definition of -�adverse incident-� in Section 11(2) of the NTMA (Amendment) Act 2000 covers matters in relation to which claims have been made or may be made, i.e., an incident report may pre-date a claim or post-date a claim. The NTMA said when performing its management of claims and counterclaims, records held by the SCA typically concern the management of legal proceedings in accordance with the SCA-�s function under Section 9(1) of the 2000 Act. As Part 2 of the 2000 Act contains a range of statutory functions performed by the SCA, the NTMA said, it is not the case that records must relate to the management of a claim in order for the exclusion contained in Schedule 1, Part 1(w)(ii) of the FOI Act to apply. Furthermore, the NTMA argued, it is not the case that there is a point in time at which records are considered to be -�in relation to a claim-� - the management of any claim will involve all records that may be relevant to such claim regardless of the dates of such records. The NTMA said the records at issue in this particular instance relate to correspondence between the SCA Clinical Claims manager and the HSE regarding the management of the claim in question in order to review and investigate the matter further and to determine an approach to claims and litigation management that would be appropriate for the parties. Accordingly, the NTMA said it is the SCA-�s position that these records fall within the exclusion in Schedule 1, Part 1(w)(ii) of the FOI Act.

The Investigating Officer provided the applicant with a further update following the NTMA-�s clarification outlined above and invited him to provide further submissions if he wished to do so. No further comments have been received to date.

Having regard to the nature of the request and the description of the records sought, I am satisfied that the records at issue in this case concern the performance of the NTMA-�s functions under Part 2 of the National Treasury Management Agency (Amendment) Act 2000, as opposed to the general administration of the Office. Furthermore, while I have noted the applicant-�s arguments about the public interest in release of the records he is seeking, there is no public interest provision concerning access to records that are excluded from the FOI Act under Schedule 1, Part 1(w)(ii). If the records do not relate to the general administration of the NTMA/SCA, then no right of access exists under the FOI Act. Accordingly, I find that the NTMA was justified in its decision to refuse access to the records sought on the ground that they are specifically excluded from the scope of the FOI Act, pursuant to Schedule 1, Part 1(w)(ii) of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the NTMA-�s decision to refuse the applicant-�s request pursuant to Schedule 1, Part 1(w)(ii) 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.

Richard Crowley

Investigator

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You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Mr K and National Treasury Management Agency [2024] IEIC 151237 (25 November 2024) URL: http://www.bailii.org/ie/cases/IEIC/2024/151237.html Cite as: [2024] IEIC 151237

Irish Information Commissioner's Decisions

Mr K and National Treasury Management Agency