Whether the Hospital was justified in refusing access to records relating to the applicant under sections 15(1)(a) (reasonable searches/records do not exist), 30(1)(a) (prejudice to investigations), and 30(1)(b) (functions relating to management)

13 October 2022

Background

The applicant made three complaints to the Hospital about her medical treatment, on 16 February 2021 (regarding her treatment in December 2020 - January 2021); 23 May 2021 (regarding her treatment in October 2020, February 2021, and April 2021); and 24 September 2021 (regarding her treatment in September 2020).

The applicant-�s FOI request of 18 May 2021 sought access to all paper or electronic records about her, dating from 22 September 2020, including her complete medical file and non-clinical records. She said that her medical file should contain records concerning all of her outpatient attendances and all clinical department notes. She said that the non-clinical records should include incident reports, desktop reviews, preliminary assessment reviews, notes of quality and safety meetings where her care was discussed, copies of all communications between quality and patient safety members that relate to her, referral letters to all internal and external healthcare providers, and policies that the Hospital has regarding her.

The applicant made a further FOI request on 2 June 2021. She sought access to records about her dating from 22 September 2020, either as held by the Hospital or sent to a third party, and which either name her or concern any incidents involving her care. She said that the records should include clinical incident reports, National Incident Management System (NIMS) forms and records, preliminary assessment forms and records, and correspondence sent to the State Claims Agency (SCA).

The Hospital-�s first decision issued on 17 June 2021. It said the Hospital was granting her request for all -�medical records, incident reports, quality & safety meetings discussed regarding care-�.

A letter, which I take to be the Hospital-�s second decision, issued on 26 July 2021. It said that it does not hold any adverse incident report in relation to the applicant.

The applicant-�s email to the Hospital of 23 September 2021 said that parts of her FOI requests had not been dealt with. She indicated that the remaining records included her Patient Experience file, which she said should contain various documents set out in the Hospital-�s complaints policy. These include a complete and accurate record of the complaint management process in theDatixinformation management system, all relevant documents and correspondences, details held onDatixregarding -�complaint status, dates, outcomes, themes, etc.-�, and all hospital staff-written reports regarding the complaint. The Hospital appears to have treated this as a further FOI request.

The Hospital-�s third decision, dated 22 October 2021, said that it was granting partial access to the applicant-�s Patient Experience file. It said that it was withholding 14 records under sections 30(1)(a) (investigations by an FOI body) and 30(1)(b) (functions relating to management) of the FOI Act.

The applicant sought an internal review on 18 November 2021, saying that further records should have been considered for release. The Hospital acknowledged receipt the following day. It confirmed that the Patient Experience file was theDatixfile, and that all records falling within the request had been considered for release.

The Hospital issued its internal review decision on 16 December 2021. It said that it had considered all records covered by the requests, had released a full copy of the applicant-�s medical chart, and holds no records of adverse incident reports specific to her care. It said that it had released all communications between quality and patient safety staff except for the 14 withheld emails, and affirmed its decision on those records.

On 23 February 2022, the applicant applied to this Office for a review of the Hospital-�s decision on the withheld records and also of the adequacy of its searches for her non-clinical records.  

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, correspondence between this Office, the Hospital and the applicant, as well as copies of the withheld records and the provisions of the FOI Act.

Scope of Review

The scope of this review is confined to whether the Hospital has justified its decisions on the applicant-�s requests.

In her internal review application, the applicant says that the Hospital-�s decision dated 22 October 2021 was sent to her by registered post on 11 November 2021. However, this review cannot examine or take account of the Hospital-�s handling of the FOI process. Furthermore, it does not extend to examining, making findings on or taking account of any other matter, such as the applicant-�s medical treatment, or the Hospital-�s handling of her complaints or any other issue. Neither can my decision take account of the applicant-�s views in relation to these matters.

Preliminary Matters 

It is relevant to set out the provisions of sections 13(2)(d) and 21(5)(c) of the FOI Act. Further to these provisions, where an FOI body decides to refuse to grant a request, the notification of the decision shall specify various details including:

• the reasons for the refusal;
• any provisions of the FOI Act pursuant to which the request is refused;
• the findings on any material issues relevant to the decision; and
• appeal rights.

The Hospital-�s decisions say that it holds no records of adverse incident reports, and that it has considered all records covered by the request. This is, in effect, a claim that section 15(1)(a) of the FOI Act applies, as discussed further below. However, the Hospital-�s decisions do not refer the applicant to this provision. Furthermore, the purported decision of 26 July 2021 gives no rights of appeal. Therefore, the Hospital has not complied with the requirements of sections 13 and 21 in relation to these matters. This is very disappointing, particularly given that the Hospital has been subject to FOI for over 20 years and should be well aware of the Act-�s requirements.

Section 13(4) of the FOI Act requires me to disregard any reasons that the applicant has or may have for making her FOI request.

Section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information.

Release of records under FOI is generally understood to have the same effect as publishing them to the world at large.

Finally, I have had regard to the comments of the Supreme Court-�s judgment inTheMinister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, [2020] IESC 57 [59] (the eNet judgment). The Supreme Court said -�it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest.-� I also note that, in the Supreme Court case of Sheedy v the Information Commissioner ([2005] 2 I.L.R.M. 374, [2005] 2 IR 272, [2005] IESC 35) Kearns, J. made it clear that a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. He stated that -�[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard-�.

However, while FOI bodies must justify their decisions, the eNet judgment in particular also says that a failure by an FOI body to do so does not lead to an inevitable or statutorily mandated outcome. Rather, the Commissioner must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.

Analysis and Findings

Section 15(1)(a) -� further records exist/adequacy of search

The applicant does not query the adequacy of the Hospital-�s searches for her clinical records. As noted above, the Hospital is effectively relying on section 15(1)(a) of the FOI Act in relation to further non-clinical records. Section 15(1)(a) provides that a request may be refused where the requested record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

My review will consider whether the Hospital is justified in its effective reliance on section 15(1)(a) in relation to the non-clinical records. However, it does not extend to considering whether the Hospital should have taken particular steps in its dealings with the applicant, or whether accordingly it should have created further, or more detailed, records.

The applicant-�s submissions

In her internal review application, the applicant notes the lack of staff-written reports and queries whether these had been withheld or not created in the first place.

The application to this Office says that the applicant was not given all records on her Patient Experience file, such as notes of staff meetings, discussions or phone calls regarding her complaints. She does not accept that no notes were made, given that she made several complaints about her care and that meetings were held about those matters. She says that, in particular, notes should have been taken by the various staff who attended a certain meeting with the Quality and Safety Director.

The Hospital-�s submissions

In inviting the Hospital-�s submission on section 15(1)(a), this Office-�s Investigator referred it to this Office-�sSample Questions for FOI Bodies, which are intended to give guidance to bodies when preparing submissions on various provisions of the FOI Act, including section 15(1)(a). She also asked various questions, which she said were not exhaustive. Details of some of those queries, and the Hospital-�s responses, are below.

One query sought descriptions regarding the type and storage of records that the Hospital normally creates when examining complaints; its searches for records concerning the applicant-�s complaints; the steps taken to identify any misfiled records; the files examined; and search methods used.

The Hospital provided a copy of its Complaints Policy, which it says outlines how it deals with complaints. It says that staff in the Quality Safety Improvement Division (QSID) searched theDatixsystem, which it says is used by the Patient Experience office to manage documents relating to, and interactions concerning, complaints. It says that the FOI office liaised with QSID in this regard by phone, email and in person. It is satisfied that all records have been identified.

The Investigator referred the Hospital to two letters, which she said she understood to concern the September and February 2021 complaints. She asked if she was correct in understanding that the matters concerned were not considered to be adverse incidents, such that the Hospital did not complete any adverse incident report forms, enter any data on NIMS, carry out any safety review, or refer the matters concerned to the State Claims Agency. She asked the Hospital to also clarify its position regarding the matters the subject of the May 2021 complaint.

The Hospital-�s position is that -�there were no Adverse Incidents submitted-� and therefore that no safety reviews were carried out -�in relation to this complaint-�, which it says it confirmed by checkingDatix.

The Investigator also referred the Hospital to particular records either seeking input from various staff, or referring to meetings, discussion points and/or attached draft documents for review. She noted records referring to edits of a draft and the collation of information. She said that while it was reasonable to expect there to exist notes of such meetings, and draft/preliminary reports or responses (both with and without annotations/comments), none seem to have been released. She referred the Hospital to a request in a particular record, which she said would have been difficult to comply with if staff did not have their own notes.

The Investigator asked the Hospital to comment on the above. She asked whether all staff who dealt with the applicant-�s treatment and her complaints had been asked if they hold relevant records, and for details of searches carried out by such staff of e.g. pcs, diaries, emails, etc. She also asked for confirmation that allDatixfiles have been released, and for details of searches of that system for further records.

The Hospital replies thatDatixholds a complete record of all documentation regarding the applicant-�s complaints. It says that not all interactions within the complaints process are formal in nature, such that minutes etc. are created, and that some discussions are verbal.

The Hospital says that complaints are coordinated through QSID, which contacted everyone involved in the complaint to provide input unto the Hospital-�s response. It says that the FOI office liaised with QSID to -�provide a full set of the notes requested-�. It says thatDatixholds two complaint files relating to the applicant, which have been released. It also says that -�[a] subsequent search of theDatixsystem did reveal that the -�memory aids-� or -�progress notes-� were not included with the original released notes.-� It provided copies to this Office -�for information-� but does not say whether it intends to release these to the applicant.

Analysis

The FOI Act does not require exhaustive searches to be carried out. However, the Hospital-�s submission does not contain enough detail to satisfy me that it has taken reasonable steps to look for the applicant-�s records.

In particular, the Hospital has now identified further records onDatix.It does not describe the further search that led to this, or explain why it was not done previously.

Aside from this, the Hospital does not say how records are stored onDatix(e.g. by reference number, alphabetically, etc.) or what search criteria QSID used to examine it. It does not describe any steps that it may have taken to ensure that records concerning the applicant are not misfiled onDatixfiles with similar reference numbers (or names, etc. as appropriate). It does not say whether it holds corresponding paper records, or describe any searches carried out of these.

As noted earlier, this Office has no role in examining whether the Hospital should have taken particular steps when dealing with the applicant-�s complaints. Therefore, I have no reason to dispute the Hospital-�s position that formal minutes are not necessarily always created of all interactions regarding a complaint, or that verbal discussions take place.

However, none of this rules out the possibility that individual staff may have created their own notes or draft material. I agree with the Investigator that it would seem difficult for both staff who care for large numbers of patients, and QSID staff who would have had no involvement in the matters complained about, to address the complaints without their own notes about discussions and/or other events, etc. The Hospital-�s submission does not indicate that it took any steps to identify or locate any such records that may exist.

The Hospital says that no adverse incidents were submitted and that no safety reviews were carried out -�in relation to this complaint.-� It is unclear whether this is the Hospital-�s position regarding only one or all of the applicant-�s complaints. Furthermore, while it may be that referrals to the State Claims Agency are only made where an adverse incident has been recorded, the Hospital does not state this.

In the circumstances, I have decided to annul the Hospital-�s effective reliance on section 15(1)(a) in relation to the requested non-clinical records. I direct it to carry out a fresh decision making process in relation to this matter, in accordance with the provisions of the FOI Act.

In this regard, I note the applicant-�s view that her records should contain the details set out at part 5.6.3.9 of the Hospital-�s Complaints Policy. The Hospital-�s new decision should comment on whether or not it is possible to generate a record containing such details (section 17(4) of the FOI Act refers). In addition, the applicant has agreed that I may forward her recent correspondence with this Office to the Hospital. The letter concerned describes various records, which she says should be on her files regarding her complaints and she emphasises that she is not limiting the Hospital-�s searches to just these items. The Hospital should address this letter in its fresh decision-making process.

Section 30(1)(a) -� effectiveness of audits/audit procedures

Section 30(1)(b) -� functions relating to management

The Hospital-�s decisions rely on sections 30(1)(a) and (b) of the FOI Act in relation to 14 emails.

Section 30(1)(a)

Section 30(1)(a) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof.

Section 30(1)(a) is what is known as a harm-based provision. Where an FOI body relies on this provision, it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur.

Section 30(1)(b)

Section 30(1)(b) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to (b) have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff).

The FOI body should identify the relevant function relating to management and identify the significant adverse effect on the performance of that function which is envisaged. It is important to note that significant adverse effect requires stronger evidence than the prejudice standard of section 30(1)(a). The FOI body should also consider the reasonableness of the expectation that the harm will occur.

In relation to both provisions, the FOI body should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) or 30(1)(b) must be made on its merits and in light of the contents of each particular record and the relevant facts and circumstances of the case. A claim for exemption pursuant to section 30(1)(a) or 30(1)(b) which is class-based is not sustainable e.g. a claim for exemption for -�any-� draft report.

Submissions

The applicant says that the emails concern her complaint and contain information about only her care. She says that details of the Hospital-�s complaints policy/process are online and so there should be no need to withhold them. She says that the Hospital has not adequately explained how harm arises from the release to her of the records. She disputes that their disclosure should undermine essential communication between management and clinical staff.

The Hospital-�s decisions say that the emails contain -�peer to peer discussions in relation to the complaints process-�. It says that they concern the internal management of, and deliberations of the management process regarding, the applicant-�s complaints. It says that because it has responded to the complaints, the emails serve no further purpose and do not add to the records already released. It says that their release could reasonably be expected to prejudice the effectiveness of the management of the complaints process in future, and undermine established and essential communication between hospital management and clinical staff. In what I take to be a public interest argument, it says that there is no exceptional circumstance in this case that would warrant release of the records.

In inviting the Hospital-�s submissions, the Investigator noted that whether the records serve any further purpose, or all other relevant details have been released, does not provide a basis for applying sections 30(1)(a) or (b). She said that staff would generally be obliged to examine any complaints received, identify relevant issues and examine the relevant events. She noted that the records at issue seem to either summarise the complaints, deal with their general administration or otherwise relate to the Hospital-�s proposed actions/ response, which themselves are fully reflected in the Hospital-�s letter to the applicant of 8 October 2021. She said that the records do not appear to contain any material that might be considered sensitive. She asked the Hospital to have regard to these circumstances in explaining how disclosure of the records could harm the relevant functions set out in sections 30(1)(a) and (b) of the FOI Act. She said that this was not an exhaustive question, and that any other relevant information and argument should be provided.

The Hospital-�s submission to this Office is similar to its decisions. It says the records comprise -�internal emails between clinical colleagues -� in the resolution of the complaints-� and -�relate to the Hospital-�s established complaints process-�. It says that their release could reasonably be expected to prejudice the effectiveness of the management of the Hospital-�s complaint process in the future. It says that the public interest weighs in favour of withholding records that it says if released could potentially undermine established communications channels between management and clinical staff.

Analysis

The fact that the Hospital has published its complaint policy does not necessarily mean that records relating to a particular complaint will not be exempt from release under the FOI Act. Otherwise though, I agree with the applicant-�s view that the Hospital-�s decisions do not adequately explain how harm arises from the release of the records. I do not consider its submission to provide any better explanation in this regard.

I accept that the records concern discussions between staff regarding the applicant-�s complaints and that they relate to the Hospital-�s complaints process. However, this is not sufficient for me to find that sections 30(1)(a) or (b) apply.

In particular, the Hospital did not respond to, or dispute, the Investigator-�s observations about the content of the records in this case. I agree with the Investigator-�s views on the content of the records.

Furthermore, the Hospital has not explained how the disclosure of the records could undermine the established communications process between management and clinical staff. It has not explained how such disclosure could otherwise reasonably be expected to prejudice the effectiveness of its examination of complaints, or prejudice the methods by which it conducts such examinations, or have a significant adverse effect on its performance of the management of the complaint process.

In all of the circumstances, I see no basis to find that sections 30(1)(a) or (b) apply to the records. I find that the Hospital is not justified in withholding the records under these provisions of the FOI Act.

Section 37

The Hospital was invited to make submissions about any other exemptions that it may consider relevant. No such arguments were received. However, I note that some very small excerpts of the records comprise what I accept is personal information about staff members. As the applicant acknowledges, I am obliged to consider section 37 of the FOI Act in relation to such details.

Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information. I am satisfied that the following details concern events in the personal lives of various Hospital staff, and that they therefore comprise personal information relating to those staff. I find that the following details are exempt under section 37(1) of the FOI Act:

• Page 138 -� seventh to eleventh words of second sentence of email.
• Page 139: last four words of second sentence. The same details are contained in a further copy of this email on page 141.
• Page 146: last four words of third sentence of email at 16.18. The same details are contained in a further copy of this email on page 148.
• Page 151: first sentence (after the salutation) of the email sent at 10:49 am. The same details are contained in a further copy of this email on page 153.

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply and I am satisfied that none of these circumstances arise. I am also required to consider section 37(5), of which only section 37(5)(a) is of relevance in this case. Having regard to the nature of the information at issue, I am aware of no public interest factors in favour of its release that, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Hospital-�s decision.

I annul the Hospital-�s application of sections 30(1)(a) and (b) to the withheld emails.

I direct the release of these records, subject to the redaction of the details that I have found to be exempt under section 37(1) of the FOI Act as listed above.

I annul the Hospital-�s effective reliance on section 15(1)(a) of the FOI Act in relation to the non-clinical records. I direct it to carry out a fresh decision making process on the matter in accordance with the provisions of the FOI Act. The Hospital-�s new decision should comment on the relevance of section 17(4) and on the particular records described by the applicant as being amongst the further records she expects the Hospital to hold.

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 by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Deirdre McGoldrick
Senior Investigator