Case number: OIC-105212-R7M5L3
14 April 2022
In a request dated 8 October 2020, the applicant sought access to records relating to the retention and disposal of the organs of her late son. The request was relevant to two HSE hospitals. The records held by one hospital were released administratively to the applicant. The records held by the other hospital were the subject of a decision dated 6 November 2020 in which the HSE identified two records as relevant to the request. Access to one record was refused in full on the basis that section 29 of the FOI Act applied, and the other record was part granted on the basis that section 37 of the FOI Act applied to the withheld information. The applicant sought an internal review of that decision on 12 January 2021, following which the HSE affirmed its decision. On 16 March 2021, the applicant applied to this Office for a review of the HSE’s decision.
For ease of reference I will refer to the records identified in the HSE decisions as Records 1A and 2A in this decision. During the course of the review, following correspondence from this Office, the HSE identified a further 117 pages of records. These were released apart from some information on pages 1, 2, 3, 56 and 64-67 which was withheld on the basis that section 37 applied to it. Pages 1 and 2 are also included in Record 2A.
Following the release of the additional records, the Investigator contacted the applicant and advised her of the Investigator’s view that section 37 applied to the information for which it had been claimed and asked if she wished to proceed with the review.
In response, the applicant identified information referenced in the released records, but which did not appear to be included in the released records. The Investigator raised these issues with the HSE. The HSE responded to the points raised and these details were provided to the applicant. In summary, the HSE released seven further records to the applicant, two of which had been released previously. It claimed that section 31(1)(a) applied to a legal opinion referred to on page 79, and that no records existed for three of the points raised such that section 15(1)(a) applied. The HSE also identified an earlier draft of part of Record 1A and refused access to two of the eight pages on the basis that section 30(1)(b) applied to it. I will refer to this as Record 1B.
The HSE also revised its position in relation to Record 1A. It released two pages of the eight pages of this record comprising the draft terms of reference of the review. The final terms of reference had already been released. (Pages 87A and 87B of the 117 pages referred to above). It claimed that access to the remaining six pages should be refused under section 30(1)(b) and no longer claimed that section 29 applied. The applicant confirmed that she wished to receive a formal decision on the outstanding issues.
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 relevant parties who made submissions. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
Pages 79 to 81 are emails dated 4 and 5 November and 8 December 2020 and postdate the request. Nevertheless, the HSE provided these pages to the applicant and while it was reasonable for her to assume that they were relevant to and within the scope of her request, I must exclude them from the scope of this review. Furthermore, the legal opinion referred to on page 79 is also outside the scope of the review as it postdates the request. However, the applicant may be interested to note that it related to the processing of the FOI request and not to the subject matter of her request.
The applicant also sought minutes of a meeting referred to on page 80, which took place on 4 November 2020. The HSE’s position is that no minutes were taken of this meeting and that section 15(1)(a) applies. However, it is also clear that any such records, if they existed, would postdate the request. As such, I have excluded this matter from the review.
For the sake of clarity, the information remaining with in scope of the review is as follows:
Accordingly, the review is concerned with whether the HSE was justified in its decision to refuse access to the records sought in whole or in part, under sections 15(1)(a), 30(1)(b), and 37(1) of the Act.
I wish to convey my condolences to the applicant on the death of her son and acknowledge the sensitive nature of the subject matter of the request for the applicant and her family.
I would add that the applicant’s request was poorly handled by the relevant HSE hospital. The identification of further relevant records during the course of the review indicates that the steps taken to identify the relevant records at the outset were not adequate. It is important that all parts of the HSE have arrangements in place to ensure that all relevant records are identified when dealing with a request.
Moreover, the provision of multiple schedules and sets of records to this Office during the course of the review, without clear numbering or references to duplicates, as well as different descriptions for the same records, made it difficult to progress the review. While I acknowledge that the HSE was dealing with the significant impacts of both COVID-19 and the cyber-attack on its services while the review was ongoing it is important that the HSE identifies and properly schedules relevant records so that all parties to the review are clear as to the records under review.
Section 30 – Functions and Negotiations
The information withheld from Record 1A comprises a draft case report dated 8 May 2020 and a completed template form entitled “HSE/Department of Health, Protocol”. The information withheld from Record 1B comprises part of a draft case report dated 4 May 2020, being an earlier draft of record 1A. The HSE refused access to the relevant parts of Records 1A and 1B under section 30(1)(b) of the Act.
Section 30(1)(b) provides that a request may be refused where the body considers that the release of the record could reasonably be expected to 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).
Where an FOI body relies on section 30(1)(b) to refuse a request, it should identify the potential harm to the performance by an FOI body of any of its functions relating to management that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. When invoking section 30(1)(b), the FOI body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Establishing "significant, adverse effect" requires stronger evidence of damage than the standards set out elsewhere in the Act such as section 30(1)(a) which contains a standard of “prejudice to” certain matters.
The HSE said the records are draft reports of an incident which took place in the hospital, relating to the applicant’s son and others. It said a review of the incident was underway and it argued that release of the withheld records could interfere with the investigative process and prejudice the review of the incident. It argued that it is important that the investigators are afforded the time and opportunity to carry out the review of the incident in accordance with the Terms of Reference (TOR), which have been released to the applicant. It drew attention to part of the TOR which states that the review “… will be cognisant of the rights of all involved in relation to privacy, confidentiality and will follow fair procedures and due process.”
The HSE argued that the premature release of the records, containing as they do sensitive information on the matter, to one of the affected parties has the potential to prejudice the effectiveness of the review. It said it is critical that the investigation of the matter is allowed to proceed without interference or prejudice. It said this is important in the context of ensuring its own learning from the incident is maximised and in the interests of the families involved, and also to ensure public confidence in the service provided.
The TOR explains that a review was commissioned by the management board of the relevant hospital regarding the incident in question. It explains that the purpose of the review is to
According to the TOR, an anonymised draft report will be prepared and all who participated in the review will have an opportunity to give input to the extracts from the report relevant to them to ensure that they are factually accurate and fair from their perspective. The TOR also indicate that the report may be published. The HSE also referred to the contents of one of the records which identifies the potential harm to the people affected by the incident and the requirement to communicate with these people in an appropriate manner.
It seems to me that the main thrust of the HSE’s argument is that its management of the review will be adversely affected by the release of some information outside of the review process and contrary to the agreed TOR. It has identified the potential harm arising from the release of the information and the reasonable expectation of that harm arising, in the circumstances where the review underway has not been completed at this time.
Having carefully considered the contents of the records and the position of the HSE, I accept the importance of the review team being in a position to conduct the review in accordance with the agreed terms TOR. The issue concerns highly sensitive matters for the people affected by the incident and I accept that is very important that the review should be allowed to proceed in accordance with the TOR, following fair procedures and due process. I also accept the HSE’s argument that the premature release of any relevant information could reasonably be expected to have a significant adverse effect on the management and conduct of the review. I find that section 30(1)(b) applies to the relevant parts of records 1A and 1B.
Having found that section 30(1)(b) applies, I must go on to consider the public interest provided for in section 30(2). That section provides that section 30(1) shall not apply in relation to a case in which in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.
According to the HSE, the draft reports should continue to be withheld to guarantee the rights of those affected by the incident by ensuring that a thorough review is carried out in line with the TOR. It argued that this outweighs any public interest in releasing the Draft Case Reports to one individual prior to completion of the Review.
While I can fully appreciate that the applicant is keen to get answers to her very legitimate concerns in relation to retention and disposal of the organs of her late son, it seems to me that the public interest would be better served at this time by ensuring that the review of the incident that also affected a number of other individuals should be carried out and completed in accordance with the TOR. I understand that the applicant will have an opportunity to participate in the review process itself. I would add that it will be open to the applicant to submit a fresh request for records upon completion of the review if she deems it useful to do so.
I also appreciate that there has been a significant delay in carrying out the review. The HSE has acknowledged the regrettable delay. It explained that its attention had been drawn to dealing with the Covid 19 pandemic, and efforts to maintain and rebuild services throughout, including efforts to prioritise critically ill Covid patients, manage infected and cocooning staff, and set about a mass vaccination programme, which took precedence over a number of operational issues. However, it said that the review is now underway.
In conclusion, I find that the HSE was justified in refusing access, under section 30(1)(b) of the Act, to the relevant parts of records 1A and 1B.
As outlined above, the HSE released additional records to the applicant during the course of the review, following which she expressed a concern that certain additional relevant records had not been released. The Investigator raised the applicant’s concerns with the HSE and subsequently provided the applicant with details of the HSE’s response. Accordingly, I do not propose to repeat those details in full here. Nevertheless, I will note that in some instances, the apparent absence of a record arose from naming and use of different descriptions for records, so while the record did actually exist, this was not clear from the other records. As noted above, a small number of additional records were also released to the applicant.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Where a body relies on section 15(1)(a), the role of this Office is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. It is not generally the Commissioner’s role to search for records.
The applicant was of the view that the incident would have been discussed at a meeting on 14 May 2020 but that this was not clear from the records of this meeting which were provided (Pages 31a-31d). The HSE’s position is that all records of this meeting have been released and there are no further records of discussion at this meeting. There is nothing to indicate that there are any further records of this meeting and while the applicant is of the view that there should be further records, she has not provided any evidence of this. I am satisfied that the HSE has taken all reasonable steps to search for relevant records. I find that section 15(1)(a) applies.
The applicant also sought information on a particular aspect of the incident. She said she had been provided with the information verbally, but wanted any documentation recording the matter. The HSE’s position is that it does not have any records which contain this information in relation to the applicant’s son and that section 15(1)(a) applies. Following further enquiries, the HSE said that there is no reference to this particular aspect of the matter in the records relating to the incident. It also provided details of the circumstances in which the information was provided to the applicant, as part of other engagement between the applicant and the HSE. I understand that the information was also communicated to the applicant in writing as part of that engagement.
Having considered all HSE’s explanation of the reasons of the relevant circumstances, I am satisfied that it has taken all reasonable steps to locate relevant records. I find that section 15(1)(a) applies.
Section 37 – Personal Information
The HSE refused some information from Record 2A and in pages 1, 2, 3, 56 and 64 - 67 under section 37(1). That section provides, subject to the other provisions of the section, for the mandatory refusal of 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 (subsection (2)(a) refers).
The 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 the body as confidential. The definition also contains a list of 14 specific types of information that is personal information, without prejudice to the foregoing definition, including (i) information relating to the medical history of the individual. The records at issue contain information about other individuals who were affected by the incident. Having examined the withheld information, I am satisfied that its disclosure would involve the disclosure of personal information relating to the individuals other than the applicant and/or her son and that section 37(1) applies.
Section 37(1) is subject to the other provisions of the section, some of which serve to disapply section 37(1). This includes section 37(5)(a), which provides that the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld. I am satisfied that there is no public interest in releasing such inherently private information relating to other individuals to the applicant in this case and that none of the other relevant provisions serve to disapply section 37(1).
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the HSE’s decision in this case. I find that it was justified in refusing access, in whole or in part, to records 1A, 1B and 2A and pages 1, 2, 3, 56 and 64 to 67, under sections 30(1)(b) and 37 of the Act. I also find that it was justified in refusing access, under section 15(1)(a), to the further records sought by the applicant other than those located and considered for release.
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.