About this case:

• Citation:
  [2024] IEHC 456
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Marguerite Bolger

Delivering judgment for the High Court, Ms Justice Marguerite Bolger determined that the HSE had advanced no basis for a restrictive application of s.35(2)(c)(i) of the Ethics in Public Office Act 1995, that there was no basis for its contention “that furnishing information about their employee’s compliance, or non-compliance, could render a third party related to the employee vulnerable to a line of inquiry in relation to their personal financial affairs that could not otherwise have commenced”, and found that the respondent had sufficiently engaged with and addressed the HSE’s arguments on s.35(1)(b) of the Freedom of Information Act 2014.

Eoin McCullough SC and Aoife Carroll BL appeared for the appellant, and Francis Kieran BL appeared for the respondent. Claire Hogan BL appeared for the notice party, RTÉ.

Background

The Ethics in Public Office Act 1995 requires certain employees of public bodies to file a statement of interest relating to their own interests and those of their spouses, partners or children of which they had actual knowledge, which could materially influence them in the performance of their official duties.

In May 2022, RTÉ sought copies of HSE registers which recorded statements of interest submitted by certain employees under the 1995 Act for the years 2015 to 2021, including the names of employees who did and did not submit statements. The HSE refused RTE’s request, and upheld that decision on internal review. RTÉ lodged an appeal with the respondent.

On 4 January 2023, the respondent held that the HSE was not justified in refusing access under s.35(1)(b) and s.41(1)(a) of the Freedom of Information Act 2014, but that s.37(1) of the 1995 Act applied to certain personal information in the records and same was to be redacted.

RTÉ was granted access to the spreadsheets for 2015 to 2021, which included inter alia the employee’s name, grade, area of employment and manager details. Personnel and mobile numbers were to be redacted.

The HSE appealed to the High Court on the basis that the respondent erred in its interpretation and application of the 1995 and 2014 Acts in finding that the records were not exempt from disclosure, and wrongly relied upon s.18(4) of the 1995 Act in deciding that the information in the records fell outside of the definition of ‘personal information’ therein.

The HSE further claimed that the respondent failed to properly consider and/or address its submissions in relation to s.35(2) of the 2014 Act on the confidential rights of relevant third parties.

The High Court

S.35 of the 1995 Act and s.41 of the 2014 Act

Ms Justice Bolger firstly considered the respondent’s decision that the HSE was not justified in refusing access to the records under s.41(1) of the 2014 Act, which requires a request to be refused where disclosure is prohibited by an enactment other than those in Schedule 3 thereto. The 1995 Act was not an enactment listed in Schedule 3.

The HSE asserted that s.35(2)(c)(i) was intended to disapply s. 35(1) only where a person is performing their functions that are set out in, for example, sections 17, 18 and 19 of the 1995 Act, i.e. where the interests could influence the performance of their functions, as otherwise disclosure requirements would apply to the relevant employee’s performance of any function under any legislation.

The respondent agreed with the HSE that the disclosure of interests would be prohibited under s.35(1) of the 1995 Act, but found that s.35(2)(c)(i) thereof disapplied s.35(1) in circumstances where the disclosure of records by the decision maker was part of the performance of their “functions” pursuant to s.35(2)(c)(i). Accordingly, if the records were not exempt from release under the 2014 Act, then s.35(1) of the 1995 Act could not prevent their release.

The court observed that there was no basis for a restrictive application of s. 35(2)(c)(i) to the 1995 Act only or to the other legislation that it expressly applied to as contended for by the HSE, and that the functions referred to in the 1995 Act included the decision maker’s functions under the 2014 Act. Accordingly, the court determined: “In the absence of an express restriction of the application of s. 35(2)(c)(i) to functions under the Ethics Act, the reference to functions should include functions under other legislation.”

S.37(1) of the 2014 Act

The court then addressed the respondent’s position in relation to the prohibition of the disclosure of personal information in s.37(1) of the 2014 Act, that most of what was contained in the records came within the exclusion to the definition of personal information at s.2(I) of the 2014 act as it related 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”.

Ms Justice Bolger confirmed: “Section 18(4) of the Ethics Act requires the HSE’s designated employees to comply with their s. 18(2) obligation to prepare and furnish a statement of interest as part of the terms of their employment. That requirement is clearly part of the terms on which those employees occupy their position. Whether or not the employee has complied with that term is, equally clearly, information relating to those terms. A request to disclose that information cannot be refused as involving the disclosure of personal information pursuant to s. 37(1) of the Freedom of Information Act.”

S.35(1)(b) of the 2014 Act

Finally, the judge considered the HSE’s contention that the respondent failed to address its arguments on s.35(1)(b) of the 2014 Act, which provides that a decision maker must refuse access to information if access would constitute a breach of a duty of confidence in an agreement, enactment or by law, and is disapplied by s.35(2) where the record is prepared by employees in the course of performance of their functions.

The court noted it was possible that relevant third parties whose actual interests were declared might have an expectation of confidence over the contents of the statements made, but made no finding in relation to same whilst highlighting “what is at issue here is entirely different, i.e., the claim made by the HSE that the Commissioner failed to engage with their submissions and arguments that the records sought by RTE contained information of interests of relevant third parties or can relate to third parties…”

Ms Justice Bolger concluded: “That argument, to the extent it was made to the Commissioner, was sufficiently engaged with and addressed by the Commissioner… The Commissioner recorded and considered the arguments made by the HSE, both of which are clearly set out in the decision. The brevity with which this was done reflects the extent and relevance of the argument made by the HSE.”

Conclusion

Accordingly, the High Court refused the HSE’s appeal.

Health Service Executive v The Information Commissioner [2024] IEHC 456