Case number: OIC-53290-Z3D2W2 (190043)
19 December 2019
This review has its background in a dispute the applicant had with the Hospital as his employer. On 15 October 2017, he submitted a request to the HSE for certain records and information. In summary, he requested the following:
1. A circular relating to Specialist Registration and the date it was received by the HSE
2. Outpatient attendances for 2014 and 2015 for a particular Department of the Hospital showing new and return patients and the ratio of both, and the number of day cases for 2014 and 2015, broken down between public and private
3. The number of private to public day cases seen by a named consultant in the named Department for the previous four years
4. The minutes of meetings held in the Hospital discussing patient attendances and day cases in the named Department for the previous four years
On 20 July 2018, the HSE issued a decision whereby it stated that it had decided to grant the request and it provided the applicant with a number of records, including minutes of two meetings, statistical data, and the requested circular. By email dated 22 July 2018, the applicant informed the HSE that the information he sought had not been provided to him. He sought additional information concerning matters relating to his employment and to the termination of his employment. He also stated that his request was, in essence, for details of whether the named consultant carries out certain unnecessary procedures privately.
On 18 September 2018, the HSE issued a second decision in which it stated that it had decided to grant the request and it released records relating to the termination of the applicant's employment. Following a further exchange of correspondence, the applicant sought an internal review of the HSE's decision on 27 September 2018. He described his request as relating to the number of private patients on whom certain procedures are carried out.
On 12 October 2018, the HSE again wrote to the applicant and stated, among other things, that it had granted access to the information sought in his request of 15 October 2017 and had issued further records in response to his email of 22 July 2018. It stated that it held no records relating to an investigation of whether the named consultant carries out certain unnecessary procedures privately.
On 29 November 2018 the applicant sent a further email to the HSE wherein he restated his request as being for details of the number of private patients on the minor operation list of the named consultant who were not seen in the Outpatient Department prior to surgery in 2015, 2016 and 2017.
In its email reply of 12 December 2018, the HSE essentially treated the applicant’s email of 29 November 2018 as a new request. It informed the applicant that the request was likely to be refused under section 15(1)(c) on the ground that processing the request would cause a substantial and unreasonable interference with the work of the Hospital. It invited him to submit a revised request. On 15 December 2018, the applicant stated that he was seeking access to the number of private patients who underwent the named minor procedure for the years 2015 to 2017.
On 20 December 2018, the HSE stated that to process the request would require an examination of 920 patient medical records and it refused the request under section 15(1)(c). It again asked the applicant to narrow the scope of his request. Further exchanges of correspondence followed.
Subsequently, by letter dated 27 November 2018 (presumably December), the HSE issued a composite internal review decision in which it stated that it had provided the information sought in the applicant's requests of 15 October 2017 and certain of the information sought on 22 July 2018. In relation to what it described as a further request via email on 29 November 2018, namely a request for details of the number of patients on the minor operation list of the named consultant who were not seen in the Outpatient Department prior to surgery in 2015, 2016 and 2017, it noted that the request had been refused under section 15(1)(c). On 26 January 2019, the applicant sought a review by this Office of the HSE's decision.
I have now concluded my review in this case. In conducting this review, I have had regard to the correspondence between the HSE and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the HSE on the matter.
The nature of the extensive engagements between the parties as described above has given rise to some confusion as to the precise scope of the review in this case. Firstly, the applicant sought additional information on a number of occasions that did not fall within the scope of his original request. Secondly, while the HSE appears to have processed those requests for additional information as separate requests, it does not appear to have made this fact clear to the applicant. However, the applicant has at least been consistent in his correspondence in respect of his request for information relating to a named consultant, namely the number of private patients on the minor operation list of the named consultant who were not seen in the Outpatient Department prior to surgery in 2015, 2016 and 2017.
During the course of the review, the HSE indicated that while it had refused access to that particular information under section 15(1)(c), it also wished to rely on section 15(1)(a) which allows for the refusal of a request where the record sought does not exist or cannot be found.
In an email dated 9 May 2019, Ms Whelan of this Office informed the applicant that the review was concerned solely with whether the HSE was justified in its decision to refuse the number of private patients seen by a named consultant in the Hospital who were not seen in the Outpatient Department prior to surgery in 2015, 2016 and 2017. She subsequently also informed him of her view that section 15(1)(a) was relevant in this case and invited him to make a further submission on the applicability of that section. I note that in his subsequent responses, the applicant raised no issues about the scope of the review as described.
Accordingly, this review is concerned solely with whether the HSE was justified in its decision to refuse the number of private patients seen by a named consultant in the Hospital who were not seen in the Outpatient Department prior to surgery in 2015, 2016 and 2017.
Before I address the substantive issues arising in this case, it is important to note that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.
Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
In its submissions to this Office, the HSE explained that no record exists that contains the specific information sought and that the information would have to be collated by way of an examination of the individual patient files. On the matter of whether it might be in a position to extract the information from electronically held records in accordance with section 17(4), it acknowledged that the files in question are held electronically but it stated that there is no specific report in existence that would allow for the extraction of the information sought. The Hospital's IT systems manager confirmed that the only way to extract the requested information is by a visual review of each patient's entry recorded on the Hospital's Patient Administration System. In order to collate the information, the HSE would need to examine the Patient Record Enquiry, the Outpatient Activity, the relevant Consultant, the date of attendance and confirm whether the date of attendance was at the Outpatient Department prior to the date of surgery.
The HSE further explained that due to the possibility that the electronic patients' records could be incomplete, further examination of hardcopy patient medical charts may be necessary to properly fulfil the request.
The applicant argued that the HSE ought to be able to ascertain which patients were private and which were public easily due to the differences in charges for each cohort of patient. However, the HSE explained that it had already ascertained that 920 patients were seen in a private capacity, but that each of these patients’ records would need to be examined in order to collate information on whether they were seen in the Outpatient Department of the Hospital prior to surgery, as requested.
Having considered the submission of the HSE, I am satisfied that the applicant's request was for specific information which is not contained in any record held by the HSE and that to collate the information sought would require the creation of a new record which the HSE is not required to do. I am also satisfied that the HSE cannot simply extract electronically held information in order to grant the request by the taking of reasonable steps. I find, therefore, that the HSE was justified in refusing the request under section 15(1)(a).
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the HSE in this case.
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 not later than four weeks after notice of the decision was given to the person bringing the appeal.