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Chapter 2. Challenge to jurisdiction

2.1 Challenge to jurisdiction - Relevant quotations and introduction

This chapter includes some material, in addition to the main text, which is intended to illustrate or amplify points made in the main text. This additional material consists of quotations from other publications, from Dáil debates or from relevant legislation. For the purposes of this web version, this additional material is included at the beginnning of each chapter segment.

"(The Ombudsman) also reports that there were legal challenges to his authority which seemed to be more concerned with preventing an investigation into particular complaints than the question of whether the complaints were justified. ...

The efficient discharge of the Ombudsman's role depends, to a large extent, on the co-operation he receives from the bureaucracy. Bearing this in mind, my Department issued guidelines to all Departments ... These guidelines did not leave any civil servant, irrespective of at what level he was serving, in doubt that they were expected to co-operate fully with the Ombudsman and his staff.

I am very concerned and disappointed, therefore, that the Ombudsman should have been hindered in any form while attempting to carry out the functions of his office. I need hardly say that I regard this absence of co-operation as tantamount to frustrating the intentions of the Government and of this House. Any lack of co-operation with the Ombudsman, irrespective from what quarter it emanates, will not be tolerated." - John Boland T.D., Minister for the Public Service, Seanad Éireann, (17 October 1985)

"The Constitution confirms various personal and other rights which are protected by the courts. Without prejudice to this basic and general protection, additional protection is available in defined areas through recourse to the Ombudsman and this can be of particular advantage to those who are poor and without social position. An effective democracy requires that public servants should be held accountable for their actions and that citizens be protected from maladministration by public officials." - Report of the Constitution Review Group, 1996

"Whatever the reasons for it, I want to be emphatic about one thing: it is not now - nor has it ever been - acceptable that institutions behave or are treated as being above the law of the State. This is a Republic - the people are sovereign - and no institution, no agency, no church can be immune from that fact." - Dermot Ahern, Minister for Justice, Equality and Law Reform, (26 November 2009)

"What the Travers Report has revealed is even worse. The Office of the Ombudsman has been established as an independent organ of the State, specifically to protect citizens from the misuse of power by the executive branch. Not only did the Department of Health misuse its power over poor people; it actively obstructed the Ombudsman in doing his statutory duty to protect them." - William Kingston, 'Studies',. 94 (376) (Winter 2005)


Both the Department and the HSE have challenged the jurisdiction of the Ombudsman in conducting this investigation and both bodies have refused to provide information and documentation required by the Ombudsman for the purposes of the investigation. In the case of the Department, the refusal to co-operate extends to virtually all of the material sought. In the case of the HSE, while it provided material in relation to individual complaints, it refused to provide much of the other material required. In their submissions to the Ombudsman, having considered material from a draft of this report, both the Department and the HSE made further, and (in the case of the former) very detailed challenges to the Ombudsman's jurisdiction to undertake this investigation and to report on it to the Dáil and Seanad. For the most part, and insofar as the issue of jurisdiction is concerned, these submissions re-state and, in some instances expand on, the jurisdictional issues raised earlier.

This jurisdictional challenge is the most serious mounted against the Ombudsman's Office since its establishment in 1984. The extent and nature of this challenge, occurring both at the outset of the investigation and at the stage of representations on the draft report, does raise serious issues for the Ombudsman as she goes about discharging her independent role. These issues were brought into even sharper focus when, on 10 September 2010, the Minister wrote (See note 1 below) to the Ombudsman, on behalf of the Government, to say:

  • that she had drawn the attention of the Government to "certain aspects" of the draft report;
  • that the Government supports the submissions made by the Department;
  • that the Government "notes that you have not invited any comments from it on any of the contents of [the] draft Report notwithstanding that the extracts furnished to the Department raise issues of special concern to the Government ...";
  • that the report reflected "an approach to health funding and the provision of health services, which, if implemented, would ignore the very serious financial constraints on the Department, the HSE and the State generally and which would create enormous liabilities that this State could not possibly afford and which the Oireachtas has never approved."

The Ombudsman Act 1980 provides that the Ombudsman "shall be independent in the performance of his functions". This independence is an imperative. The Constitution Review Group recognised this in its 1996 Report when it recommended that the Office of Ombudsman be given constitutional status:

"Independence is the foundation stone upon which the office of the Ombudsman is based. The Ombudsman must be able to operate without being influenced by Government action. It is not enough for him or her to be independent in fact - he or she must also be seen as such by those who use the office. A constitutional guarantee for this independence would reinforce freedom from conflict of interest, from deference to the executive, from influence by special interest groups, and it would support the freedom to assemble facts and reach independent and impartial conclusions."

This recommendation, which has yet to be implemented, would put the Ombudsman on a par with other constitutional offices such as the Comptroller and Auditor General and the Attorney General.

The Ombudsman is satisfied that neither the challenges by the Department, nor the Minister's letter of 10 September 2010, have compromised her independence in this particular case. However, she would point out that no other Minister has ever written to the Ombudsman in such terms. In any event, and in order to avoid any risk of misrepresentation, the correspondence on these issues between the Ombudsman's Office and the Department/ Minister are attached as appendices to this report

Note

(Note 1)The Minister's letter (pdf 139kb) is published, along with other related correspondence, in the Appendices to this report

2.2 Challenge to jurisdiction - Summary of exchanges with Departments

On 30 July 2009 the Ombudsman notified an "own initiative" (See note 2 below) investigation to the Department. The investigation concerned the provision of in-patient services under section 52 of the Health Act 1970 for patients requiring such services on a long-term basis. Details of the terms of the investigation, as notified to the Department, are set out in Chapter 1.

On 21 August 2009, the Department replied making clear that it had serious reservations about the investigation. It said it would "assist the Ombudsman in the carrying out of any investigation that operates within the parameters of the Ombudsman Act 1980 ...". It referred to the litigation to which it and the HSE are parties and expressed concern that "the proposed investigation ... will not undermine or impinge upon the State's defence of this litigation"; further, it said there "is a real risk that an investigation ... will have a negative impact on the State's conduct of the defence of the litigation". The Department argued, as the "actions being investigated are the subject matter of court proceedings", that the Ombudsman could not investigate without showing that "special circumstances" exist which warrant an investigation.

The Ombudsman's reply of 25 August 2009 explained that the jurisdictional restriction referred to by the Department does not arise in this case. The restriction "precludes investigation by the Ombudsman of an action in relation to which the person affected by the action has initiated civil legal proceedings in any court"; since this is an "own initiative" investigation", there is no specific complainant so the restriction does not arise. The Ombudsman's letter continued:

"You express some concern that the Ombudsman's investigation may 'undermine or impinge upon the State's defence of ... litigation' arising from the non-provision of in-patient services. A related matter is the Department's position that 'the interpretation of statutory provisions ... [is] a matter for the Courts rather than one on which the Ombudsman should express a view'. The implication would seem to be that the Ombudsman's investigation might cause certain facts to be brought into the public domain, or draw attention to a particular legal analysis, which might prove helpful to the litigants in question. The suggestion is that the Ombudsman should not proceed with the investigation at this point because of the potential to undermine the State's defence of the litigation. This suggestion is at odds very fundamentally with the statutory role of the Ombudsman which is, acting independently, to investigate the actions of public bodies whether on foot of specific complaints or acting on her own initiative. The implication in the Department's suggestion is that the Ombudsman, in fulfilling her statutory role, should act in a manner which protects the interests of the HSE and the Department to the detriment of the interests of complainants and of the public more generally. Clearly, the Ombudsman cannot accept that this is a correct view of how she should perform her statutory role. As for the Department's position that the Ombudsman should not express any view on the interpretation of statutory provisions, the Ombudsman does not agree: virtually all complaints dealt with by the Ombudsman involve taking a view on how legislation should be interpreted."

On 31 August 2009 the Ombudsman wrote to the Department specifying a range of information and documentation which the Department was required - under section 7 of the Ombudsman Act 1980 (See note 3 below) - to provide for the purposes of the investigation. Details of what was sought have already been given in Chapter 1.

In its reply of 11 September 2009, the Department raised issues regarding the time period covered by the investigation and whether the Ombudsman had jurisdiction to investigate actions going back over a period of several years. More fundamentally, the Department argued that the Ombudsman does not have jurisdiction to conduct a "wide-ranging investigation" of the kind proposed and that, in any event, the Ombudsman is confined to investigating "actions taken in the performance of administrative functions". The Department took the view that "the directions/requests for documentation/information ... go considerably beyond anything necessary to investigate the performance of any administrative function by the Department or the HSE". The Department made much of its entitlement, as is the case with any party to litigation, to defend its position and to withhold from the Ombudsman not just privileged material but also confidential material.

The Ombudsman made a detailed reply on 16 September 2009 which restated the requirement under section 7 of the Ombudsman Act 1980. In particular, the Ombudsman commented as follows in relation to the withholding of material claimed to be privileged or confidential:

"It is a matter for the Department to decide on whether or not to comply with the Ombudsman's request: it can decide to do so or not to do so. However it is somewhat disingenuous to argue that, in making this decision, the Department is in the same position as is any ordinary party to litigation. The Department is a party to the litigation in its capacity, under the Constitution, as exercising the executive power of the State; the manner in which it exercises that function is a matter of public interest (not least to the extent that public money is involved in the conduct of the litigation). Choosing not to disclose this privileged material to the Ombudsman means that the Ombudsman will have only a limited understanding of how the Department acted in the conduct of the litigation. This, in turn, will have the consequence of the Ombudsman being restricted in how she performs her statutory functions. There may well be situations in which it might well be acceptable for a public body not to comply with a request from the Ombudsman for material covered by legal privilege; equally, there are likely to be situations in which refusing such a request is not acceptable. It remains a matter for the Ombudsman to take a view on when a refusal is acceptable or unacceptable.

The Department expresses the view that "disclosure of privileged and/or confidential material relating to the claims ... would be inappropriate ...". It is important to be clear that confidential material is not necessarily covered by legal privilege. In particular, while details of the settlements reached with some of the litigants may be subject to a confidentiality agreement, they will not be covered by legal privilege. Under section 7(1) of the Ombudsman Act, the Department is legally bound to provide the Ombudsman with this material - as specified in our letter of 31 August 2009 - irrespective of any view it may hold that disclosure would be inappropriate. "

In subsequent correspondence, the Department raised issues to do with fair procedure, about its need to know precisely the nature of the complaints it should address and re-stated the view that the conduct of the litigation could not be seen as having any bearing on a valid Ombudsman investigation. Furthermore, it rejected the view that it is open to the Ombudsman to consider "the actions of the Department of Health and Children in seeking to resolve any lack of clarity regarding the intention of the legislature in enacting section 52 of the Health Act 1970". The Department takes the view that its actions, or failure to act, in this regard cannot be understood as actions taken in the performance of an administrative function. The Department maintained the position that it was perfectly willing to co-operate with any investigation provided the Ombudsman remained within her jurisdiction; and it pointed out that the HSE had co-operated in the provision of files on individual complainants; but it would not provide material relating to those elements of the investigation which, in the view of the Department, were not within the Ombudsman's jurisdiction.

On 16 October 2009 the Ombudsman wrote to the Department saying, amongst other things:

  • that she is satisfied that the investigation is within her jurisdiction;
  • that the Department had failed to comply with a statutory requirement under section 7 of the Ombudsman Act;
  • and that, notwithstanding this failure to co-operate, she intended to proceed with the investigation.

The Ombudsman also pointed out that the Department's refusal of information included much information which in principle is, or should be, in the public domain (for example, information on court proceedings). And in terms of refused documentation, she pointed out that some, in principle, is in the public domain (court pleadings, for example) while other items, such as records of costs incurred, should be in the public domain in the interests of transparency and accountability.

Notes

(Note 2) An "own initiative" investigation, provided for at section 4(3)(b) of the Ombudsman Act 1980, is undertaken on the initiative of the Ombudsman herself rather than in response to a complaint from a specific complainant. The provision allows for an Ombudsman investigation of an "action", in the absence of a specific complainant, where "it appears to [her], having regard to all the circumstances, that an investigation under this section into the action would be warranted". While not dealing with a specific complaint or complainant, "own initiative" investigations are informed generally by complaints received. This was the case in the present instance.

(Note 3)Section 7 of the Ombudsman Act 1980 provides the Ombudsman with the statutory power to "require" the provision to her by "any person" of information or documents in the control of that person. Section 7 also authorises the Ombudsman to require the attendance by a person who holds such information or documents. Section 7(3) provides:

"A person shall not by act or omission obstruct or hinder the Ombudsman in the performance of his functions or do any other thing which would, if the Ombudsman were a court having power to commit for contempt of court, be contempt of such court."

2.3 Challenge to jurisdiction - Comment

The role of the Ombudsman is set out in the Ombudsman Act 1980. The Ombudsman may investigate "any action" taken by, or on behalf of, a body subject to her jurisdiction provided the action in question is one "taken in the performance of administrative functions". Where the Ombudsman finds that the action has adversely affected a person, and that the action reflects "maladministration" (See note 4 below) , then she may recommend redress for the person concerned.

Taken at face value, the Department's vision of what the Ombudsman may do is limited to the investigation of individual complaints, or groups of complaints, but focused always on the narrow issues of the specific cases. Furthermore, the Department proposes an understanding of the term "taken in the performance of administrative functions" as a narrower rather than a wider category. (See note 5 below) In effect, the Department's vision of the Ombudsman's Office is that it is fine to deal with specific cases but that to look beyond these cases, and to ask why problems recur or why promised amelioration has not come about, is beyond the jurisdiction of the Ombudsman. This view of the Ombudsman role is at odds with the reality of what public sector Ombudsman Offices around the world actually do; it is at odds also with what the Irish Ombudsman has been doing for many years. It is implicit in the Ombudsman model adopted by the Oireachtas in 1980 that the role involves far more than the investigation of individual complaints; though dealing with these complaints remains the core business and provides the basis for looking also at wider systemic or governance issues. That this role is envisaged by the Oireachtas is made clear by the provision which allows the Ombudsman to conduct investigations on her own initiative (see Note 2 in the previous section of the report).

One can understand that the Department is sensitive to external enquiry given the number of reports and investigations over the past decade which have focused on its performance. (See note 6 below) One can also understand that the Ombudsman's Office has good reason to be particularly wary of the behaviour of the Department generally: in the conduct of the previous, related investigation in the late 1990s, and in discussions regarding long-stay care entitlement over a number of years in the early 1990s, the Department withheld from the Ombudsman key information which, had it been disclosed, would have led to the identification and resolution of the long-stay charges issue by at least a decade earlier than was actually the case. (See note 7 below)

Taken in conjunction with its behaviour in the past, the refusal of the Department to co-operate with the Ombudsman in this investigation suggests that serious issues of transparency and accountability within the Department remain to be resolved. Furthermore, it is clear that the Department's opposition to the Ombudsman's investigation is prompted to a fair extent by its fear that the investigation "will have a negative impact on the State's conduct of the defence of the litigation". This prompts two questions; firstly, how should the State behave in defence of litigation initiated by a citizen claiming to have been deprived of a statutory entitlement and, secondly, what impact might an Ombudsman investigation actually have on the outcome of such litigation.

Notes

(Note 4) The term "maladministration" is used as a shorthand description for the seven grounds listed at section 4(2) (b) of the Act: "(i) taken without proper authority, ( ii) taken on irrelevant grounds, (iii) the result of negligence or carelessness, (iv) based on erroneous or incomplete information, (v) improperly discriminatory, (vi) based on an undesirable administrative practice, or (vii) otherwise contrary to fair or sound administration."

(Note 5) In its chapter on the Ombudsman in Administrative Law in Ireland (3rd edition 1998, pp.344 - 345) Hogan and Morgan express the view that the "requirement that the 'action ' be 'taken in the performance of administrative functions' is designed to exclude judicial or legislative decisions. " The actions of the HSE and of the Department addressed in this investigation cannot be described as either judicial or legislative. The fact that some of these actions may relate to judicial or legislative actions is of no consequence in this context.

(Note 6) For example, the Ombudsman's Nursing Home Subventions report (2001), the Travers Report (2005) and the Second Report of the Organisational Review Programme, Department of the Taoiseach, 2010

(Note 7) For more on this, see Chapter 3.

2.4 Challenge to jurisdiction - How should the State behave?

The State has a legal personality and is liable to be sued as well as having the capacity to sue. In the normal course, litigation in our system is an adversarial process. Anyone choosing litigation must in general be prepared for what might be a bruising encounter, one in which lawyers on either side will do whatever is necessary (within the law and court procedure) to win the case for their client. At the same time, the purpose of the Courts is to administer justice.

In normal litigation, it is usually the case that the interests of the defendant are best served when the action fails. The State, however, is no normal litigant or defendant. Under the Constitution, all powers derive from the people and it is the people, not the State, who are sovereign. The State, by definition, must act in the public interest. One might expect that a body, such as the Department, exercising the executive power of the State in a litigation situation, would act in good faith and in the public interest. Unfortunately, given the history of its involvement in "managing" the long-stay care issue, the record of the Department is such that, at the very least, one is entitled to be a little sceptical of its intentions. Thus, it may not always be in the public interest that the State will be the winner in litigation. For example, if the agents of the State place their own interests over the wider public interest (as can happen) then it is not in the public interest that the State should win. Nor is it in the public interest that public money should be saved at the expense of meeting a statutory right: the public interest in upholding the law presumably takes precedence over the public interest in saving public money.

It would be very helpful if, in circumstances such as those arising in this report, there were a mechanism under which the Courts could give a declaratory ruling in relation to an issue affecting a large number of people and where, in the absence of such a mechanism, a high level of individual litigation would result. Such a mechanism might be confined to circumstances in which the putative defendant would be the State and/or one of its agencies. At present, there is no such mechanism and to provide for one would require legislation. Under such a mechanism, one can envisage that issues of legal privilege and discovery of documents would not become matters of controversy. On this approach, individual litigants would (for the most part) be relieved of the burden of undertaking costly and burdensome legal actions. On the other side, there would be a stepping back from the unedifying spectacle of the State adopting adversarial and aggressive behaviour against its own citizens.

In the context of the litigation at issue here, the following would seem to be the case: the litigants may be characterised as coming from a vulnerable group within society; they are seeking vindication of what they believe to be a statutory right to nursing home care; their attempts to be given such care by the State have failed; they have generally incurred significant costs and endured serious upset in their efforts to secure their rights (as they see it). In the absence of a mechanism for a declaratory ruling by the Courts, there is a strong case that in dealing with litigation in these circumstances the State should see itself as acting, not simply in defence of its own interests (as would the typical defendant), but in the wider public interest. Taking this approach, it would be possible for the State side to facilitate a speedy hearing and adjudication by waiving legal privilege, agreeing to voluntary discovery of documents and thus speeding up the eventual outcome. (See note 8 below)

In its submission in response to a draft version of this report, the Department chose to understand the type of comment above as a "purported denial of the right of [the Department and the HSE] to have the issues the subject of proceedings before the Courts determined by the Courts, being the organ of government upon which the Constitution confers the sole and exclusive power to administer justice in the State." This is to misrepresent the comments above. Clearly, the Department and the HSE have the right to rely on the Courts to adjudicate; but they have flexibility in how they choose to conduct the proceedings. It is not always in the public interest that actions against a State body should be defended in the traditional, adversarial fashion which typifies litigation generally. The Ombudsman's point is that the response of a State body to litigation against it should be governed by what best serves the public interest rather than what best serves the interests of that particular body. The public interest and the interests of the particular body will not necessarily be the same.

Note

(Note 8) The State is currently resisting discovery in some of the cases before the Courts - see Chapter 8 - though the HSE says it has agreed to voluntary discovery in some cases.

2.5 Challenge to jurisdiction - Impact of Ombudsman Investigation

It seems the Department's concerns about the possible impact of an Ombudsman investigation are predicated on a view that it is appropriate for the State agencies to behave in this litigation as if they were just any other defendant. As suggested above, this may not be a valid assumption. In any case, it is hard to see how an Ombudsman investigation would actually impinge on the outcome of the litigation. The Courts would be most unlikely to be influenced, one way or the other, by any legal analysis of the Health Act 1970 put forward in an Ombudsman investigation report. That analysis is unlikely to contain any insights not already ascertainable by a competent legal team acting for the plaintiffs. Similarly, insofar as an Ombudsman investigation report might comment on the overall approach to the litigation being adopted by the State, this is most unlikely to contain anything not already apparent from the pleadings of the State and which would be known already to the plaintiffs.

On the issue of other such cases having been settled out of court, the fact that this has happened is already well known and an Ombudsman report mentioning this would have no bearing on matters one way or the other. Indeed, knowledge of the terms of such settlements would be most unlikely to have any bearing on a court judgment; though it would perhaps be helpful to a plaintiff interested in making such a settlement.

2.6 Challenge to jurisdiction - Wider issues raised by jurisdictional challenge

Quotation

"The State pledges itself to safeguard with especial care the economic interests of the weaker sections of the community, and, where necessary, to contribute to the support of the infirm, the widow, the orphan, and the aged." - Bunreacht na hÉireann, Article 45.4. 1° - Directive Principles of Social Policy.(See note 9 below )


The Ombudsman does not accept that the Department's challenge arises from a genuinely held belief that this particular investigation is being conducted without proper jurisdiction. Furthermore, the Ombudsman believes that the challenge, and the related failure to co-operate with the investigation, constitute a failure to comply with the requirements of section 7 of the Ombudsman Act 1980. This conclusion applies equally to the HSE albeit that it co-operated to some extent.

The refusal of the Department to give any information relating to settlements is particularly troubling. What it means is as follows:

  • some plaintiffs have succeeded, at least partially, with their claims;
  • public money has been spent on these settlements though the extent of this expenditure is not known;
  • there is no way of knowing why these particular plaintiffs should have succeeded while other plaintiffs, presumably with broadly similar cases, have not succeeded;
  • on the face of it, some plaintiffs are being treated more favourably than other plaintiffs;
  • the successful plaintiffs are being treated more favourably than the thousands of others, affected by the State's failure to provide nursing home care, who have not taken legal action;
  • it appears it is the intention of the Department that details of these settlements will never be disclosed.

It is probable that the insistence on confidentiality arises at the behest of the State rather than of the plaintiffs but is likely to be defended by the State on the grounds of protecting the interests (for example, right to privacy) of the plaintiffs. (See note 10 below) The plaintiffs, having chosen to bring their cases to court, and thus into the public domain, can have no expectation of privacy or confidentiality and it would be disingenuous to suggest that the State is simply acceding to the wishes of the plaintiffs. Any attempt by the State to keep confidential the terms of settlements in these cases should be viewed in the light of the provisions of the Freedom of Information (FOI) Act 1997. It seems probable, based on existing precedents, that these settlements would be releasable under the FOI Act if sought by a requester.

The Information Commissioner has given two FOI appeal decisions dealing specifically with the right of access to out-of-court settlement agreements between a public body (co-incidentally, the HSE in both cases) and a third party. In both instances, notwithstanding that the settlements included a confidentiality clause, the Information Commissioner directed release of the settlement terms. (See note 11 below) In a decision dated 12 March 2010 the Commissioner commented:

"I wish to include here a general comment on the matter of confidentiality agreements. In my decision in Case No. 000528 ... I set out my views on confidentiality agreements in an era of FOI and expressed the belief that the enactment of the FOI Act has a bearing on the capacity of public bodies to enter into legally binding confidentiality agreements which are now subject to its implied terms. I stress that I have not said that FOI renders all such agreements inoperable, As I have previously found, section 26 of the FOI Act is not intended to protect the interests of public bodies. The language within section 26 itself, especially in sub-section (2), supports the view that the protection of the section is directed at entities other than public bodies. " (See note 12 below)

The Commissioner's position is that, under FOI, a confidentiality clause may be invoked to protect the interests of the party other than the public body; but not to protect the interests of the public body. In the present context, it seems unlikely that the FOI Act would protect the interests of the plaintiffs. There do not seem to be good grounds for believing that the right to privacy of the plaintiffs, who have made settlements with the State, should displace the public interest in knowing the extent to which State bodies are giving public money to individual persons.

The approach of the Department and of the HSE in the present context, in refusing any information on the settlements, seems designed to frustrate the Ombudsman in the performance of her statutory duty. It seems the same intent was evident in the manner in which the HSE failed to co-operate with the Information Commissioner in her role in the decision cited above. Included in the material at issue in that FOI case was information about payments made by the HSE to a company as a result of an out-of-court settlement. It appears from the Commissioner's published decision that the HSE withheld the relevant records from her Office until forced to hand them over following the serving of a legal requirement. The Commissioner comments on this in her decision:

"My Office encountered misleading and incomplete responses to its efforts to clarify and examine the issues and the records under review. Although the HSE's submission of 30 November 2009 purported to present all of the material within the scope of the review, it later transpired that the records covered by item 4 of the request - the payments made- had been omitted from the material received in response to requests from my Office on several occasions. Some of the omitted records were furnished on 4 February 2010. However, on 11 February 2010 my Office served notice under section 37 (1) of the FOI Act on Professor Brendan Drumm, Head of the HSE, requiring him to furnish the outstanding record showing the amount paid to Lifeline [the company in question] as a result of the High Court case in 2008. The record, accompanied by a submission, was received from A&L Goodbody, solicitors on 18 February 2010. No reason was given for the previous failure to supply the necessary information to enable me to carry out this review.

Unfortunately, the evidence in this case leads me to conclude that the HSE's behaviour in relation to the request and the review had the effect of frustrating the operation of the FOI Act in relation to access to records and delaying my Office's review and investigation into whether or not the refusal of the records was justified. "

This suggests very clearly a problem of a lack of transparency, and a pattern of willingness to frustrate statutory investigation, on the part of the HSE and of the Department.

Notes

(Note 9) The Directive Principles of Social Policy are stated to be "for the general guidance of the Oireachtas ... in the making of laws...". They are non-binding.

(Note 10) In its response to the draft version of this report, the HSE (at P.16) commented that it is not "appropriate to assume that it is always the HSE who might insist on, or seek, a confidentiality agreement".

(Note 11) See the decisions of the Information Commissioner in Case 000528 - Sunday Times & North Eastern Health Board and Case No. 090191 - Sunday Times & Health Service Executive.

(Note 12) Case No. 090191 - Sunday Times & Health Service Executive