Whether the Hospital was justified, under sections 29(1), 30(1) and 37(1) of the FOI Act, in refusing access to various records relating to staffing in the Hospital at night

12 October 2022

Background

In a request dated 1 March 2022 the applicant sought access to -�copies of any records held referring or relating to the issue of understaffing at night at Beaumont Hospital in 2022-�, and -�copies of any assessments, health and safety audits, memos, or other such records concerning night-time staffing at the hospital during 2022-�. The Hospital did not issue a decision within the statutory timeframe, and on 4 May 2022 the applicant sought an internal appeal of the deemed refusal. In a late internal appeal decision, on 17 June 2022, the Hospital part-granted the request. The nine records that were identified as relevant to the request were released in part, with redactions made under sections 37(1), 29(1) and 30(1) of the FOI Act. Other parts of the records were redacted on the basis that they were not relevant to the request.

On 20 June 2022, the applicant applied to this Office for a review of the Hospital-�s decision. He said that the partial release of the records resulted in documents that are almost impossible to follow, and queried whether the exemptions had been misapplied, including whether the names of staff of a public body had been incorrectly redacted. He also stated that the Hospital had not demonstrated how release of the records would be contrary to the public interest.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the submissions made by the Hospital and to the applicant-�s comments in his application for review, as well as to the correspondence between the parties as outlined above. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

In addition to redacting parts of the records that it considered exempt under sections 37(1), 29(1) and 30(1), the Hospital redacted a significant amount of other information from the records on the basis that it was -�not relevant-�. This included sentences, parts of sentences, and whole paragraphs. In the course of the investigation, I suggested to the Hospital that it seemed to me that an overly narrow interpretation of the FOI request may have been taken. I asked the Hospital to review and reconsider the information it had redacted on the basis of being -�not relevant-� and asked that, where the information was not clearly and obviously outside the scope of the request, it justify its refusal to release it with reference to an appropriate exemption in the FOI Act. In response, the Hospital said that receiving sick calls from staff, opening and closing of wards, and moving staff between wards are part of normal operations of the hospital and that the time period reflected in the records coincided with an increase in the rates of COVID-19 which had a significant impact on the operations of the Hospital. It maintained its position that the information in question was not relevant to the FOI request.

I have carefully considered the contents of each of the nine records, all of which are emails sent by Out of Hours Hospital Night Managers. Having regard to the totality of the wording of the applicant-�s FOI request, I find that the Hospital took an overly restrictive interpretation of it.  It seems to me that sick calls from staff, closures of wards, moving staff between wards etc are all broadly related to, or consequences of, the issue of understaffing and night-time staffing. I find that each of the records in their entirety fall within the scope of the request.

In these circumstances, this review is concerned with whether the Hospital was justified in refusing access to certain parts of the records under sections 29(1), 30(1) and 37(1) of the FOI Act.  As section 37 of the Act is a mandatory exemption, I consider it appropriate to consider the applicability of section 37 to all of the records, including those parts of records deemed not relevant by the Hospital. This is in keeping with thede novonature of a review by this Office, which means that it is based on the circumstances and the law as they pertain at the time of the decision.

Preliminary Matters 

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presume not to have been justified unless the body satisfies the Commissioner that its decision was justified.

Analysis and Findings

As section 37 is a mandatory exemption, I will examine it first.

Section 37: Personal information

Section 37(1)

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers).

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual, (iii) information relating to the employment or employment history of the individual, and (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held 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 his or her functions (Paragraph I refers). The exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms, conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally.

The Hospital redacted various parts of the records under section 37(1), including names of hospital wards, references to named and unnamed staff members, and names/initials of patients. As stated previously, I have examined all of the records in their totality in my consideration of section 37.

In explaining why it redacted the names of wards, the Hospital said that this was because the wards had a small number of patients on them and that a patient or family member could identify themselves, potentially resulting in upset. It seems to me that while a person reading a record that references a named ward may well realise that they themselves or a family member were a patient in that ward at that time, this does not disclose personal information about an identifiable individual to the world at large. I do not accept that the names of wards constitute personal information within the meaning of the definition at section 2 of the FOI Act.

In relation to staff members and certain information in the records relating to them, the Hospital said that while some of the records did not name the staff member, it included a reference to their COVID-19 test results.  It said that because the staff member worked in a small, specific area, they would potentially be identifiable to colleagues. Having regard to the other information contained in the records, including the grade/job title of the unnamed individuals, I accept that these staff members would potentially be identifiable to their colleagues and that sensitive medical and other information would be revealed about them if this information were released. I accept that section 37(1) applies to this information, which is contained in records 1, 4, 6 and 9. I do not, however, accept that it applies to record 5 which includes a more general reference to a named ward being left understaffed due to sick leave.

The Hospital redacted further information from records 4 and 6 relating to both unnamed and named (first names only) staff. It seems to me that the withheld information concerns staff members in the course of carrying out their functions and I find that the exclusion at Paragraph I applies.

Records 2 and 6 contain medical details of identifiable patients. I am satisfied that section 37(1) applies to this information.

For the avoidance of doubt, I find that section 37(1) applies to the following information contained in the recordsonly:

• Record 1: first two words of line 15
• Record 2: lines 14, 15, 16
• Record 4: first five words of line 23
• Record 6: line 14, and the words between -�calls to-� and -�so delay-� on line 17
• Record 9: line 17, and line 18 as far as -�leaving-�.

However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section.

Section 37(2)

Section 37(2) sets out certain circumstances where section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third party has not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I find that section 37(2) does not apply to the withheld information.

Section 37(5)

Section 37(5) of the FOI Act provides that access to personal information may be granted where (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. It has not been argued that releasing the information sought would benefit the individuals to whom the information relates and I find that section 37(5)(b) does not apply, in the circumstances.

On the matter of the applicability of section 37(5)(a), in carrying out any review this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies.

It is important to note, however, that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and -�there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure-�. Although the Court-�s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

In weighing the public interest, it is also important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 (-�Rotunda Case-�). It is noted that a true public interest should be distinguished from a private interest.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

Neither party made submissions on the public interest, and I am not aware of any relevant public interest in granting access to the information sought that outweighs, on balance, the public interest in upholding the privacy rights of the individuals to whom the information relates. In the circumstances, I find that section 37(5)(a) does not apply.

Section 30: Functions and negotiations of FOI bodies

Section 30(1) of the FOI Act provides that an FOI request may be refused if access to the record concerned could reasonably be expected to:

1. 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,
2. 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), or
3. disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body.

Section 30(2) provides that the above exemption is subject to a public interest test.

The Hospital refused to release parts of records 2, 3, 4, 6, 7 and 9 under section 30(1). In its submissions to this Office, it said that sections 30(1)(a), 30(1)(b) and 30(1)(c) all applied.

Sections 30(1)(a) and 30(1)(b)

Sections 30(1)(a) and 30(1)(b) are both harm-based provisions. Where an FOI body relies on these provisions, it should explain how and why, in its opinion, release of the records could reasonably be expected to give rise to the harm envisaged. It is important to note that the significant adverse effect in section 30(1)(b) requires stronger evidence than the prejudice standard of section 30(1)(a). A claim for exemption under these provisions must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. A claim for exemption which is class-based is not sustainable e.g. a claim for exemption for -�any-� draft report.

As stated previously, the records at issue are all emails sent by Out of Hours Hospital Night Managers. In its submissions, the Hospital said that the effectiveness of the performance of the Out of Hours Hospital Manager, Patient Flow/Bed Management and Infection Prevention & Control would be adversely affected by the release of information relating to their decision-making processes. It said that the emails that have been released as part of this FOI request were intended to be confidential communication with the line manager to convey decisions (as well as the rationale for some of those decisions) that were made overnight about patient placement and wards opening and closing based on changing and complex service demands. It said that the effectiveness of this type of communication in the future would be prejudiced by the release of this information.

I acknowledge that the Hospital is concerned that the release of the records at issue would have an adverse effect on the performance of the Out of Hours Hospital Manager(s), Patient Flow/Bed Management and Infection Prevention & Control teams, as well as prejudicing future communication from Out of Hours Hospital Managers to their line manager. However, it did not explain what that adverse effect would be or how release of the records could cause such an adverse effect or prejudice future communications. Nor is it evident to me from an examination of the records. 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. I am not satisfied that the Hospital has justified its refusal to release the records under sections 30(1)(a) or 30(1)(b).

Section 30(1)(c)

Section 30(1)(c) is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of the Government or an FOI body. It is important to note that this exemption does not contain a harm test (unlike section 30(1)(a) and 30(1)(b)). It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc.

An FOI body relying on section 30(1)(c) should identify the relevant negotiations at issue. The Oxford English Dictionary defines "negotiation" as "the action or business of negotiating or making terms with others". It goes on to define the verb "negotiate" as "to hold communication or conference (with another) for the purpose of arranging some matter by mutual agreement; to discuss a matter with a view to some settlement or compromise". Relevant factors in considering whether there is, or was, a negotiation include whether the FOI body was trying to reach some compromise or some mutual agreement. The Commissioner also accepts that, generally speaking, proposal-type information relating to a public body's negotiations would also be exempt under section 30(1)(c). In deciding whether there are negotiations for the purpose of section 30(1)(c), factors to consider include, for example, whether there is:

• any proposal for settlement or compromise, or
• any indications of 'fall-back' positions, or
• information created for the purpose of negotiations, or
• the FOI body-�s negotiating strategy, or
• an opening position with a view to further negotiation.

The Hospital said that negotiations as to when and how to open, or close, certain bed capacity at night are constantly being made by the Out of Hours Hospital Managers, and based on input from Patient Flow / Bed Management and Infection Prevention & Control on behalf of Beaumont Hospital. It said that decisions regarding placing patients on different wards are complex and influenced by many different factors ranging from individual patient needs, infection control requirements, and seeking to ensure sufficient capacity to meet demand. The Hospital said that members of the public could become unnecessarily concerned about their care / care of their relatives, when seeing information regarding decisions on patient placement and wards opening and closing out of context or without the necessary background knowledge to understand the decision-making process.

Before I examine the substantive issue of whether release of the records could disclose information regarding negotiations, I want to address the Hospital-�s concerns that the release of these records, out of context, to those without the necessary background knowledge to understand them, could cause harm. This Office does not generally accept that the possibility that information once released will be misinterpreted by the public is a valid reason for refusing access to the information. We hold this view because, apart from anything else, such an argument appears to be based on an assumption that public bodies are incapable of explaining their records to the public and are unable to present information to the public in a way which will allow any objective observer to draw accurate and balanced conclusions.

I note the Hospital-�s position that complex decisions must be made at night with many different factors to be taken into account. I do not doubt that making and implementing these decisions is difficult and complicated, and that it requires careful communication and cooperation between different parts of the Hospital. However, having regard to the submissions and to the contents of the records themselves, at most they contain factual information and factors taken into consideration when certain decisions were made. I do not accept that access to the records could reasonably reveal information in respect of negotiations by the Hospital or any other FOI body and I find that that section 30(1)(c) does not apply to any of the records.

As I find that section 30(1) does not apply to any of the records at issue; there is no need to examine the public interest under section 30(2). 

Section 29: Deliberations of FOI bodies

In the decision letter sent to the applicant, the Hospital indicated that it was refusing parts of records 2, 4, 7 and 9 under section 29(1). However, in the submissions to this Office, reference was only made to records 2 and 4. For completeness, I have looked at all four of these records.

Section 29(1) of the Act provides for the discretionary refusal of a request if (a) the record contains matter relating to the deliberative processes of an FOI body and (b) granting the request would be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for public bodies to show to the satisfaction of the Commissioner that both requirements are met. The public interest test at section 29(1)(b) is a strong test. Any arguments against release should be supported by the facts of the case and it should be shown how release of the record(s) would be contrary to the public interest.

The exemption does not apply in so far as the records contain any of the information or matter referred to in section 29(2), which includes (b) factual information and (c) the reasons for the making of a decision by an FOI body. Where an FOI body is relying on section 29(1) for the refusal of a record, it is very important to consider whether section 29(2) applies in relation to the record concerned before reaching a conclusion on the application of the exemption.

In its submissions, the Hospital said that decisions relating to the management of the hospital at night are part of a deliberative process with many factors (as outlined under section 30 above) to be taken into consideration. It noted that the records contained details about the numbers of patients admitted or moved, numbers of patients who died, and patients with COVID-19. It said that this information is used as part of the deliberative process in managing the hospital but given the shorthand nature of the communication, provided without the necessary context, it could easily be misinterpreted and cause upset. It said that, for this reason, it would be contrary to the public interest to release this information.

For the same reasons as I have outlined in relation to section 30, a claim that records cannot be released, due to concerns around them being misinterpreted, is not sustainable.

While I note that the Hospital made no reference to section 29(2) in its submissions, it seems to me that this should be considered first. Section 2 of the FOI Act states that -�factual information-� includes information of a statistical, financial, econometric or empirical nature, together with any analysis thereof. The Commissioner has also found previously that the word "includes" in this definition means that, while information of a statistical, econometric or empirical nature should be regarded as factual, regard must also be had to the ordinary meaning of the term. I note that the information withheld from records 2, 7 and 9 includes numbers of patients admitted or moved, numbers of patients who died, and numbers of patients with COVID-19, as described by the Hospital in its submission. I am satisfied that this constitutes factual information and that the exclusion at section 29(2)(b) applies. Furthermore, the information withheld from record 4 is an explanation for why a certain course of action was taken by the night manager. I am satisfied that this contains the reasons for the making of a decision by an FOI body and that the exclusion at section 29(2)(c) therefore applies.

As section 29(2) provides that section 29(1) does not apply to records containing factual information or the reasons for the making of a decision by an FOI body, there is no need for me to examine whether section 29(1)(a) or 29(1)(b) applies.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Hospital-�s decision. I find that it was justified in refusing to release the information to which I have found section 37(1) to apply. I find that it was not justified in refusing to release the remainder of the records and I direct their release subject to the redaction of the following information only:

• Record 1: first two words of line 15
• Record 2: lines 14, 15, 16
• Record 4: first five words of line 23
• Record 6: line 14, and the words between -�calls to-� and -�so delay-� on line 17
• Record 9: line 17, and line 18 as far as -�leaving-�.

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 applicant 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.

Emer Butler
Investigator