Mr. Tony O'Brien:

I thank the Deputy for raising the issue because when we were last here, it would have been possible to leave the room with the view that we were saying that we were constrained by An Garda Síochána, that members of the committee had completely contrary information to that and, therefore, we were in some way saying things that the committee did not accept to be true. In order to be able to give the committee the most up-to-date information, I asked for a full briefing note from Arthur Cox, the lawyers dealing with this matter on behalf of the HSE, and I can circulate the note to the committee, if it wishes me to do so. It would be helpful for me to share certain salient information.

This is basically an update of the current position relating to HSE publication of the reports in question. A letter to us from Arthur Cox stated that:

1. As you know, the HSE has been engaged in consultation with An Garda Síochána in relation to this matter for a considerable period of time. In order to try to ascertain the status of An Garda Síochána's investigations and the ongoing implications in respect of publication of the Reports by the HSE, we were asked by the HSE to formally engage with An Garda Síochána in relation to the matter.

2. In this context by letter dated 26 March 2015 we wrote to An Garda Síochána enclosing a copy of the Conal Devine Report with suggested redactions. We indicated that it was the intention of the HSE to publish the Report and requested that they revert if they had any objection to the release of the Report.

3. When we received the Resilience Ireland Report, we also sent a copy of that Report with suggested redactions to An Garda Síochána by letter dated 15 April 2015 and requested that they revert if they had any objection to the release of the Report.

4. On 30 April 2015, An Garda Síochána raised queries which were addressed by us on 1 May 2015, and the consideration of the matter was then passed to An Garda Síochána legal section. We suggested further redactions to An Garda Síochána. An Garda Síochána wrote to us to request that the HSE "hold off on publishing" the Report pending a reply from An Garda Síochána's legal section.

5. We sent follow-up letters to An Garda Síochána in relation to the Resilience Ireland Report on 2 June 2015 and in relation to the Conal Devine Report on 19 June 2015 and in relation to both Reports on 23 July 2015.

6. On 7 August 2015, we received a letter from An Garda Síochána dated 31 July 2015 which stated "regarding the release of the Conal Devine Report and the Resilience Ireland Report I am to inform you that, at this time, we do have concerns that the release may adversely affect ongoing investigations". By way of response dated 13 August 2015, we told An Garda Síochána that "we have advised the HSE of your correspondence and confirm the HSE does not propose to release the Report at this time". We requested that An Garda Síochána update us if the position in relation to publication changed and in particular if/when the investigations concluded.

7. In addition an Addendum Report to the Resilience Ireland Report was furnished to us on 10 September 2015. We carried out appropriate similar redactions in line with the earlier Reports and furnished the Addendum Report to An Garda Síochána by letter dated 14 October 2015. In our letter of that date to An Garda Síochána, we also sought an update as to An Garda Síochána position in relation to the publication of the Report and asked for an update as to if/when the investigations might conclude.

That is the most up-to-date position we have. By sharing it with the committee, it may be clearer that we are in a position of wanting to publish the reports.

In respect of the FOI request, the same correspondence stated that:

8. On 30 September 2015, the Office of the Information Commissioner ("OIC") furnished us with its review in relation to an appeal by an FOI requester seeking access to the Conal Devine Report under the Freedom of Information Acts 1997 and 2003. The HSE had initially not granted access to the Report for a number of reasons, primarily because of the confidentiality rights of third parties having regard to the sensitive personal information that is contained in the Report.

9. The OIC decision was that the HSE is to release certain parts of the Report i.e. the methodology and recommendations of the Report (to the extent such parts do not contain any personal information of service users).

10. As you know, disclosure of the documentation is expressly stated by the OIC (in their decision letter of 30 September 2015) to be subject to appeal to the High Court by any person affected by the decision of the OIC. Subject to any appeal by any relevant party, the disclosure will be made in due course pursuant to the Freedom of Information Acts 1997 and 2003 on 24 November 2015 (i.e. 8 weeks after the OIC decision). As you know, we have notified relevant parties of the decision.

That is in both respects the most up-to-date information we have available to us.