Case number: 090154
The Commissioner found that the claims for exemptions made by the HSE and the relevant Hospital were unfounded in this case. She also found that the public interest favoured the release of the draft reports to the Applicant. Accordingly, she annulled the decision of the HSE and directed the release of the records concerned.
Whether the HSE's decision to refuse the Applicant's request for access to draft reports of the investigations into her husband's death was justified under sections 21(1)(a) and (b) of the FOI Act.
In a request dated 25 March 2009, the Applicant sought access under FOI to all internal and external reports in draft and final form concerning the alleged wrongful death of her late husband, Mr. X, which occurred on 6 October 2007 following a surgical procedure at Kerry General Hospital (the Hospital). In a decision 11 May 2009, the Hospital refused the request under section 21(1)(a) of the FOI Act. On 18 May 2009, the Applicant made a request for internal review to the Health Service Executive South (HSE). At some point, however, the final report of the External Review Group, entitled "Review of the care of the late Mr. [X] at Kerry General Hospital from 27th September 2007 to 1st October 2007 and report on the circumstances surrounding his death", and dated April 2009, was made available to the Applicant.
In a decision dated 10 June 2009, the HSE refused access to "any" draft report under section 21 on the basis that "disclosure of a draft Report could harm operations of the HSE in that the information could prejudice the effectiveness and investigative functions of the HSE and would have a significant adverse effect on the performance of functions relating to management, including industrial relations and personnel management." The HSE also found that disclosure of a draft report is not in the public interest for certain specified reasons relating to the prejudicial effect it would have on its ability to carry out investigations.
The Applicant applied to my Office for review in a letter dated 22 June 2009. In support of her application for review, the Applicant submitted a copy of the final report and also Chapter 4 of the Department of Health and Children's Report on the Commission of Patient Safety and Quality Assurance, dated July 2008, wherein it states: "Patients should be offered full access to information relating to their care, including correspondence between healthcare professionals." The Applicant also indicated that a draft report surrounding the death of her late husband had been disclosed to the Cork County Coroner by HSE solicitors in or around April 2008. She argued that this disclosure undermined the HSE's stated grounds for the refusal of her request. She submitted that the public interest in ensuring fair procedure warranted the disclosure of all draft and final reports to her as the next of kin of the deceased.
In a preliminary view letter dated 2 June 2009, Ms. Elizabeth Dolan, Senior Investigator, advised the HSE that she did not consider that it had met its burden of proof under section 32(12)(b) of the FOI Act of showing that its decision to refuse the Applicant access to any draft reports relating to the death of her husband was justified. She referred to the disclosure of a draft report to the coroner and also to the statement in the HSE's internal review decision that "[d]isclosure of a draft Report . . . would not disclose any relevant material that has not already been disclosed [in the final report]". She also noted that the HSE had raised no objection to the Applicant, as the widow and next of kin of the late Mr. X, having access to his personal information under section 28 of the FOI Act. Furthermore, Ms. Dolan indicated that, even if the records concerned qualified for exemption under section 21(1)(a), the public interest in their release would outweigh the public interest in withholding them in the circumstances of this case.
On 7 January 2010, the HSE forwarded a response to Ms. Dolan's preliminary view letter from the Hospital. Having noted the contents of the response, I have decided to conclude the matter by way of a formal, binding decision.
As noted above, the final report on the circumstances surrounding the death of Mr. X has been made available to the Applicant. The final report is therefore no longer at issue, though I have had regard to its contents in reaching my decision in this case.
According to a schedule of records forwarded to my Office, the HSE has refused access to the following relevant records:
This review is concerned with the question of whether the decision to refuse the Applicant's request for access to the internal and external draft reports is justified.
It is important to have regard to the extent to which the FOI Act confers on members of the public a statutory right to access records held by public bodies. This is something which the Courts have acknowledged. For example, Mr. Justice McKechnie., in his judgment in Deely v. The Information Commissioner  IEHC 91 (text of judgment is available at www.oic.gov.ie), had this to say about the FOI Act:
"[The Act's] passing, it is no exaggeration to say, affected in a most profound way, access by members of the public to records held by public bodies and to information regarding certain acts of such bodies which touch or concern such persons. The purpose of its enactment was to create accountability and transparency and this to an extent not heretofore contemplated let alone available to the general public. Many would say that it creates an openness which inspires a belief and trust which can only further public confidence in the Constitutional organs of the State.
[T]he clear intention is that, subject to certain specific and defined exceptions, the rights so conferred on members of the public and their exercise should be as extensive as possible, this viewed, in the context of and in a way to positively further the aims, principles and policies underpinning this statute, subject and subject only to necessary restrictions.....It is on any view, a piece of legislation independent in existence, forceful in its aim and liberal in outlook and philosophy."
This view of the extensive nature of the rights conferred by FOI has been endorsed by the Supreme Court, in Barney Sheedy v. The Information Commissioner IESC 35 (text of judgment also available at www.oic.gov.ie), where Mr Justice Fennelly commented:
"The passing of the Freedom of Information Act constituted a legislative development of major importance. By it, the Oireachtas took a considered and deliberate step which dramatically alters the administrative assumptions and culture of centuries. It replaces the presumption of secrecy with one of openness. It is designed to open up the workings of government and administration to scrutiny. It is not designed simply to satisfy the appetite of the media for stories. It is for the benefit of every citizen."
Thus, the underlying presumption of the FOI Act is that requests for access will be granted, subject only to necessary restrictions. I also wish to emphasise that, under section 34(12)(b) of the FOI Act, a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."
I should also note, however, that while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. This constraint means that, in the present case, the description that I can give of the contents of the draft reports is limited.
It is not disputed that, as the spouse and next of kin of the late Mr. X, the applicant has a right of access to his personal information. Her right of access derives from section 28(6)(b) of the FOI Act and the relevant regulations, S.I. No. 387 of 2009, which have replaced the previous regulations relating to records of deceased persons, S.I. No. 47 of 1999. Article 4(1)(b)(iii) of S.I. No. 387 states that, subject to the other provisions of the FOI Act, a request for access to records of a deceased individual shall be granted to "the spouse or next of kin of the individual where in the opinion of the head, having regard to all the circumstances and to any relevant guidelines published by the Minister, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing the request".
The HSE and the Hospital have relied on section 21(1)(a), which provides that a public body may refuse access to a record if it considers that access could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof. In its internal review decision, the HSE also seemed to raise a claim for exemption under section 21(1)(b), which provides that a request for access to a record may be refused where access could reasonably be expected to have a significant, adverse effect on the performance by a public body of any of its functions relating to management.
In arriving at a decision to claim a section 21 exemption, a decision maker must, firstly, identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The test of whether the expectation is reasonable is not concerned with the question of probabilities or possibilities; it is concerned with whether or not the decision maker's expectation is reasonable.
It is appropriate here to refer again to the Supreme Court judgment in Sheedy v Information Commissioner, referenced above. Mr. Justice Kearns stated, in relation to section 21(1), that "the onus to produce evidence of prejudice fell on the Department and in the absence of same the Commissioner was entitled, under s. 34 of the Act of 1997, to hold against the Department. A mere assertion of an expectation [of prejudice] could never constitute sufficient evidence in this regard". Thus, in the present context, I consider that the HSE must show some evidence of prejudice if its reliance on section 21(1)(a) is to be justified. In the case of a claim under section 21(1)(b), a stronger showing of harm is required than under the "prejudice" standard of section 21(1)(a). When invoking section 21(1)(b), the public body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Not only must the harm be reasonably expected, but it must also be expected that the harm will be of a more significant nature than that required under section 21(1)(a). Both sections 21(1)(a) and (b) are subject to a public interest test under section 21(2).
In this case, I note that both the original and internal review decisions seemed to make class-based claims for exemption in relation to any draft report. For instance, no specific reference was made in either decision to the internal draft report. In my view, such an approach is untenable under section 21(1) of the FOI Act. I consider that any request for a draft investigative report must be dealt with on its merits in light of the contents of each particular report concerned and the relevant facts and circumstances of the case.
In relation to the draft Moriarty report, the HSE stated that a thorough investigation which complied with the principles of Constitutional and Natural Justice was required; accordingly, the draft report was prepared and furnished to those who might be adversely affected by the report. The HSE stated that it had no input into either the external draft report or the final report. It expressed concern that the draft report "could possibly contain inaccuracies". Moreover, according to the HSE, it could not effectively commission such reports if drafts were disclosable for two reasons: (1) "[s]ome staff may be reluctant to co-operate, given that they could be wrongly criticised in a Report, when they have not been given the opportunity to draw attention to inaccuracies or other relevant information that was not known or properly appreciated by the investigators"; and (2) "investigators [would be] less likely to be willing to carry out investigations, because of the increased risk to them of being criticised or sued for concluding something which is in fact incorrect".
However, the HSE's internal review decision also indicated that any information of relevance was incorporated into the final decision. Moreover, in its submission to this Office dated 22 July 2009, the HSE made the following statement: "The hospital General Manager has asked me to point out that the requester was provided with the final external report from Dr. Moriarty and her team and that the copy of the draft internal and external reports were encapsulated in the final document." An examination of the final report, which the applicant has helpfully made available to this Office, confirms that the substance of both draft reports has indeed been incorporated into its comprehensive account and analysis of the circumstances surrounding the death of Mr. X. It may be the position of the HSE and the Hospital that no useful purpose would therefore be served by releasing the draft reports to the applicant, but this does not provide a basis for establishing the requisite prejudice under section 21(1)(a).
In response to Ms. Dolan's preliminary view letter, however, the Hospital prepared a table of amendments made by the External Review Group in preparing the final report. In its submission dated 6 January 2010, the Hospital describes the amendments as "clearly significant". It states:
"The Review Team saw fit to amend the draft External Report following receipt of submissions by some of the medical team. The HSE is not privy to all communications between the team and the Reviewers. The HSE is not privy to the thinking of the Reviewers, but the amendments to the draft Report are significant and must have been made out of concern that . . . some of the draft Report was inaccurate."
The Hospital also notes that there are instances where staff members are identifiable in an unfavourable light. The Hospital highlights three examples here, which I will generally describe as follows: (1) the administration of a certain drug; (2) the transfer from a certain unit to the ward; and (3) the extubation of Mr. X.
It would appear that the Hospital might not have re-examined the final report in full before preparing its submission. All the identified "amendments" are taken from the chronology of events and, as noted in detail below, most are referred to elsewhere in the final report either explicitly or implicitly. Moreover, all three of the "unfavourable" examples highlighted by the Hospital are also discussed in the final report. In short, I see no inconsistencies between the draft reports on the one hand and the final report on the other which could give rise to any risk of confusion or misunderstanding, nor, in my view, do the contents of the reports support the view that any individual staff member is shown in a more unfavourable light in the draft reports than what is revealed by a perusal of the final report. I also note that the Review Group requested and obtained full indemnity.
In specifically addressing the Hospital's table of amendments, I note at the outset that the issue of discrepant, inaccurate, and incomplete clinical notes, as well as other conflicting evidence, is dealt with throughout the final report; therefore, any minor inconsistencies would in any event be easily understood in this context. I do not think that I would be revealing exempt information in violation of section 43(3) of the FOI Act if I include the observations below based on my comparison of the reports. Taking the amendments in the numerical order in which they appear in the table, I note:
Given the length and complexity of the final report, the above list may not be entirely exhaustive in that other relevant references may be found elsewhere, but it should serve to illustrate that the so-called amendments identified by the Hospital appear to be merely in the nature of stylistic or editorial changes that were made in incorporating the draft reports into the final report. I also note that the issues of the administration of the certain drug, Mr. X's transfer to the ward, and his "early extubation" are discussed in the Executive Summary and elsewhere in the final report. Therefore, based on my examination of the contents of the draft reports as compared to the final report, I find no basis to support the claim of prejudice under section 21(1)(a). It follows that the stronger showing under section 21(1)(b) has also not been met.
I could conclude my decision at this point, but I feel that I should comment further on why I consider the claims for exemption to be unfounded in this case. Mr. X was an apparently healthy, 44-year-old man who died following a standard operative procedure to repair a fracture of his left wrist. This is an extraordinary occurrence in any health system, and it must have been immediately apparent to any of the staff members involved that an inquest, among other inquiries, would be held. Therefore, it is highly unlikely that any of the staff members involved would have had any expectation of confidentiality with respect to any relevant information pertaining to this case. Indeed, although a claim has been made regarding the reluctance of staff to co-operate with investigations, no claim has been made regarding any guarantees or assurances of confidentiality. In any event, as I noted in Mr. Y and the HSE, Case Number 080144 (21 Oct. 2008), there is a general onus on public servants, including those in the health service, to co-operate in regard to matters relating to their employment. In other jurisdictions, the expectation that medical practitioners will conduct themselves in a professional and cooperative manner in relation to investigations has also been noted. For instance, in Orth and Medical Board of Queensland  QICmr 2 (20 June 2003), at para. 80, the Queensland Information Commissioner observed that "it was reasonable to expect that practitioners under investigation by the MBQ would be willing to cooperate with the investigation, and provide all relevant information, both as a matter of accepted professional obligation, and to give their explanation of relevant events." In Medical Practitioners Board of Victoria v Sifredi  VSC 33 (15 Feb. 2000), at para. 15, the Supreme Court of Victoria stated: "This Court should not be seen to be supporting . . . such a general exemption nor should it lightly conclude that the medical profession would be so introverted and self-indulgent as not to aid in legitimate inquiries into the conduct of medical practice without an assurance of exemption."
Moreover, it is apparent from the internal draft report and the external reports that routine methods of investigation were employed, such as reviewing clinical notes and relevant reports, including the report of the inquest, and interviewing key staff. As a general matter, I do not accept that such routine methods of investigation could reasonably be expected to be prejudiced by the release of a draft report following the conclusion of the investigation. As the Queensland Information Commissioner observed in Villanueva and Queensland Nursing Council  QICmr 2 (26 April 2000), at para. 45:
"The only types of investigative methods or procedures which appear to have been adopted by Ms Harrison in investigating the applicant's complaint consisted of interviewing, or otherwise obtaining written information from, the various people involved in the incident in question . . . , and from other midwives and medical practitioners; and reviewing relevant documentary evidence such as hospital notes and medical records. On the information before me, I am unable to see how the effectiveness of any of those methods or procedures could reasonably be expected to be prejudiced by disclosure of the matter in issue. They are routine methods of investigation, used by law enforcement/investigative agencies on a regular basis."
In the circumstances, I find no justification for the claims for exemption made in this case.
Although it is not necessary for me to do so, I feel that I should also comment on where the public interest lies in this case. Section 21(2) of the FOI Act provides that section 21(1) does not apply if the public interest would, on balance, be better served by granting rather than by refusing the request. In previous decisions, I have recognised, as do my counterparts abroad, that the public interest encompasses the concept of fairness to individuals. In this case, the HSE and the Hospital have failed to show that disclosure of the draft reports could reasonably be expected to result in any harm to their functions under sections 21(1)(a) and (b). However, it seems to me that withholding the draft reports could be harmful in the sense that it could give rise to unnecessary suspicions on the part of the Applicant with respect to the process of the investigations into her husband's death, particularly where, as here, a draft report apparently was made available to the coroner but not to her, the next of kin.
As it states in Chapter 4 of the Department of Health and Children's Report on the Commission of Patient Safety and Quality Assurance: "Patients should be offered full access to information relating to their care, including correspondence between healthcare professionals." As Mr. X's spouse and next of kin, the Applicant is effectively in his position as the patient in this case; I therefore consider that there is a strong public interest in ensuring that she is fully informed of the care and treatment he received prior to his death. I also consider that there is a strong public interest in ensuring that the Applicant is fully informed of the processes as well as the outcome of the investigations into the circumstances of her husband's death. See, e.g., Pope and Queensland Health  QICmr 16, at para. 94 ("[T]here is, in addition to other relevant considerations, a public interest (which in my opinion carries substantial weight) in appropriate public scrutiny of, and accountability with respect to, the process and the outcome of an investigation . . . ."). In short, even if I were to find that the draft reports qualified for exemption under section 21(1), which I do not, I would find that there is an overriding public interest in their release to the Applicant.
Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the HSE and direct the release of the records concerned.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such a review must be initiated not later than eight weeks from the date of this letter.