The Health Service Executive (HSE) has failed in a High Court challenge to a decision permitting RTÉ access to records relating to the compliance of certain HSE employees with their disclosure obligations under the Ethics in Public Office Act, 1995.
Ms Justice Marguerite Bolger said the HSE’s criticism of the Information Commissioner for failing to engage with its arguments it made in appealing his decision to allow RTÉ to have the information “have neither a factual basis nor any merit”.
The Ethics Act requires certain employees of public bodies, including the HSE, to file a statement of interest relating to their interests. It also applies to the interests of their spouses or partners or children of which they have actual knowledge, which could materially influence them in or relating to the performance of their official duties.
The HSE requires their relevant employees to submit a statement of interest even if they have no such interest, in which case their statements will say “nil interest”. The HSE treats its database of statements of interest confidentially in accordance with its own code of governance.
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In May 2022 RTÉ invoked the Freedom of Information (FOI) Act of 2014 in seeking copies of registers from the HSE that recorded the statements of interest submitted by certain designated employees for the years from 2015 to 2021, including the names of those who submitted or who did not submit the statements of interest required of them.
The HSE’s freedom of information decision-maker refused the request, and that decision was upheld by an internal review.
RTÉ lodged an appeal with the Information Commissioner who, following a process, held that the HSE was not justified in refusing access under the Freedom of Information Act. However, the commissioner said certain information could be blacked out.
The HSE brought a High Court appeal against the commissioner over the decision, with RTÉ as a notice party.
The HSE argued, among other things, that the commissioner wrongly concluded that the information sought by RTÉ came within the exclusions to the definition of personal information under the FOI Act, having had regard to the requirements imposed by the Ethics Act.
It was also argued that the commissioner failed to address the arguments they made that disclosure was precluded due to duty of confidence requirements. It argued the commissioner failed to give reasons for the decision as required by law.
The commissioner opposed the appeal.
Refusing the appeal, Ms Justice Bolger said the commissioner recorded and considered the arguments made by the HSE, both of which are clearly set out in the commissioner’s decision. “The brevity with which this was done reflects the extent and relevance of the argument made by the HSE”, she said.
She said the decision of the commissioner stands.
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