Case number: OIC-143938-X4N3G7

Whether the Hospital was justified in refusing access to records sought by the applicant in requests dated 4 September 2023 and 18 September 2023 on the ground of Section 15(1)(g) of the FOI Act

 

15 March 2024

 

Background

In a request dated 4 September 2023, the applicant submitted a very broad and detailed request to the Hospital for a range of information and records, including specified surgical data for various surgeons for the years 2019, 2020 and 2021, records of the protocols for the involvement of Trainee Surgeons in any surgical procedures which show certain specified information, specified information relating to certain specified monitoring and auditing systems and processes, and information on actions taken in respect identified issues.

On 18 September 2023, the applicant submitted a second request for certain information relating to surgeries the applicant’s late sister underwent in January, September and October 2021, including details of any trainee surgeon(s) or others who were part of these surgeries and how they were involved, and records of copies of the surgical theatre register entries for the three surgeries.  At the outset, I wish to offer my condolences to the applicant on the death of her sister.

On 4 October 2023, the Hospital refused both requests under section 15(1)(g) of the FOI Act on the ground that it regarded the pattern of requests to be vexatious. On 17 October 2023, the applicant sought an internal review of that decision, following which the Hospital affirmed its refusal of the requests. On 16 November 2023, the applicant applied to this Office for review of the Hospital’s decision.

During the course of the review, the Investigating Officer provided the applicant with details of the Hospital’s submissions wherein it outlined its reasons for refusing the requests under section 15(1)(g) of the FOI Act. The Investigating Officer invited the applicant to make submissions. The applicant made submissions to this Office on 26 and 29 February 2024, wherein she included copies of correspondence with various Hospital staff members.

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 correspondence between the applicant and the Hospital as outlined above and to the communications between this Office and both p[arties on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Hospital was justified in its decision to refuse, under section 15(1)(g) of the FOI Act, the applicant’s requests for a range of records and information concerning both general surgeries and her late sister’s surgeries on the ground that the requests are vexatious or form part of a pattern of manifestly unreasonable requests.

Analysis and Findings

Section 15(1)(g) of the FOI Act provides for the refusal of a request where the FOI body considers the request to be frivolous or vexatious or to form part of a pattern of manifestly unreasonable requests from the same requester. While the section identifies three specific characteristics which may lead to a decision to refuse a request, there may often be a degree of overlap. For example, a request that is frivolous may also be vexatious, and what is frivolous and/or vexatious may also form part of a pattern of manifestly unreasonable requests.

Generally speaking, a request is considered by this Office to be frivolous or vexatious where it has been made in bad faith or forms part of a pattern of conduct that amounts to an abuse of process or an abuse of the right of access. We have previously set out a number of non-exhaustive factors that we consider relevant in assessing whether a request may be categorised as frivolous or vexatious and regard those non-exhaustive factors as equally relevant in determining whether or not there is evidence of a pattern of manifestly unreasonable requests. The factors include, but are limited to;

1. The actual numbers of requests filed: are they considered excessive by reasonable standards?

2. The nature and scope of the requests: for example, are they excessively broad and varied in scope or unusually detailed? Alternatively, are the requests repetitive in character or are they used to revisit an issue which has previously been addressed?

3. The purpose of the requests: for example, (a) have they been submitted for their “nuisance” value, (b) are they made without reasonable or legitimate grounds, and/or (c) are they intended to accomplish some objective unrelated to the access process?

4. The sequencing of the requests: does the volume of requests or appeals increase following the initiation of court proceedings or the institution or the occurrence of some other related event?

5. The intent of the requester: is the requester’s aim to harass government or to break or burden the system?

It must be stressed that this list is non-exhaustive, nor is it necessary for all of the above factors to be present before a request can be refused under section 15(1)(g). It is also appropriate to consider the request concerned in the context of other requests made to the FOI body and in the context of the requester’s other dealings with the FOI body concerned. On the latter point, I note that in Kelly v the Information Commissioner [2014] IEHC 479, the High Court found that this Office was not confined to considering the specific request and that it was entitled to consider the wider context in which the request was made. This view was endorsed by the Court of Appeal in Grange v the Information Commissioner [2022] IECA 153, which found that this Office was “entitled to take into account the history of dealings between the appellant and the Department and the previous FOI requests insofar as they were relevant to the appellant’s grievance, as well as the context of the FOI requests in question”.

It is also important to note that while section 13(4) of the FOI Act generally requires public bodies to disregard any reasons for the request, a requester’s motive for making an FOI request is relevant when considering the application of section 15(1)(g). In the aforementioned High Court proceedings, O’Malley J. stated that in determining whether a particular application should be described as vexatious, the Information Commissioner is entitled by statute to use his discretion. She stated that “there is no obligation on the commissioner to prove the applicant’s state of mind, and inferences may be drawn on a common sense basis from a pattern of conduct”.

Hospital’s Submissions

In its submissions, the Hospital provided details of its prolonged engagements with the applicant since January 2022, which included facilitating the viewing of records, meetings with various medical and non-medical staff members of the Hospital and addressing the applicant’s requests for further information regarding her late sister’s care, which included requests from the applicant for a review of her late sister’s records and further information regarding Hospital programmes and policies. It provided details of 86 items of correspondence the applicant sent between 28 January 2022 and 30 November 2023 to a range of Hospital personal, including, among others, the FOI Liaison Officer, Consultants, the Quality and Risk Manager, the Complaints Officer, the Hospital’s Chief Executive Officer, the Peri-operative Clinical Director, and the Chairperson of the Board of Directors. 61 of those items of correspondence issued before the applicant made her request of 4 September 2023. Apart from the two requests that are the subject of this review, her correspondence included an FOI request in February 2022 for her late sister’s healthcare records, and an FOI request in November 2022 for non-personal Hospital information and personal information relating to her late sister. The applicant availed of opportunities to view her late sister’s healthcare records on two occasions and the records were released in April 2022. The applicant, supported by the Patient Liaison Officer also met with the two consultants involved in her late sister’s care in July 2022.

The Hospital added that the applicant also made a complaint to the Hospital concerning her late sister’s care, which response was appealed and reviewed internally, and that she subsequently appealed the Review Officer’s response to the Office of the Ombudsman. It said the response from the Office of the Ombudsman remains outstanding. IT said it has also received communication from the Health Information and Quality Authority with regard to the case.

The Hospital said that in June 2023, the Quality and Risk Manager held a meeting with the applicant, at which the Patient Liaison Officer and Patient Advocate were present. It said that at this meeting, the applicant was informed that the Hospital would not be communicating further with her until the Office of the Ombudsman issued its report and an external report into the care of the applicant’s sister was issued. It said the external report was commissioned by the Operative Clinical Director in July 2023 and that the report was issued to the applicant in September 2023. It said the applicant continued to communicate with the Hospital after the meeting.

The Hospital said it is apparent that the applicant is seeking to pursue her dissatisfaction with the care and treatment of her late sister. It said the requests are focused on the medical staff that assisted with surgery and that the requests are “over detailed” and being used to pursue her grievance with the Hospital. Additionally, the Hospital stated that with regard to the two FOI requests that are the subject of this review, the records sought are unlikely to exist.

Applicant’s submissions

In her application for review to this Office, the applicant said she would like to know what information was relied upon by the Hospital in refusing her request under 15(1)(g). She said that in relation to her pursuing her complaint, she is currently pursuing some aspects of her complaint through other State Agencies and that she corresponded with the Hospital to inform them that she would consider options with other State Agencies to pursue her complaint. She said her interest and desire to understand the issues that have arisen are not only as a result of her sister’s care, but also as a result of her belief that the Hospital should make the records she has requested publicly available to assist and inform patients who are considering surgery at the Hospital. She said that she believes the Hospital should be accountable and these types of records are publicly available in other countries.

The applicant said she identified what she believed to be serious concerns regarding her late sister’s care and that given the seriousness of these issues, she believes that all her requests for information are reasonable. The applicant said it is clear to her how to proceed with further avenues regarding clinical issues, namely her complaints with the Hospital, and that she does not see the FOI route as the way to do this, although she does wish to see the records requested. She said she does not seek to pursue her complaint with the Hospital through the two FOI requests under review. She said she has concerns, issues and unanswered questions concerning her late sister’s care. She said she did not agree with the Hospital’s submission that the requests are focussed on the medical staff that assisted with the surgery and that the request are overly detailed. She said she amended her two requests to remove the names of specific medical staff and condensed her two requests in response to the Hospital’s submission that the requests are overly detailed.

My Analysis

The FOI Act affords important access rights to records held by FOI bodies. In performing any functions under the Act, FOI bodies must have regard to:

  • The need to achieve greater openness in their activities and to promote adherence by them, to the principle of transparency in government and public affairs;
  • The need to strengthen the accountability and improve the quality of decision making of FOI bodies, and
  • The need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies.

The refusal of a request under section 15(1)(g) is not something that should be undertaken lightly. As its Long Title states, the purpose of the Act is to enable members of the public to obtain access, to the greatest extent possible, consistent with the public interest and the right to privacy, to information in the possession of public bodies. The Act demands that FOI bodies meet very high standards in dealing with request. They are required to go through the rigorous processing requirements of the Act. However, this Office takes the view that the legislation assumes reasonable behaviour on the part of the requesters.

As I have outlined above, the FOI requests at issue in this case cover a broad range of records relating to surgical data, Hospital policies and procedures, and information regarding the applicant’s late sister’s care. I also note that the requests, at parts, seek clarification of certain matters as opposed to seeking specific records. For example, the applicant sought confirmation that certain consent processes should be in place in the Hospital for each and every surgical procedure. The FOI Act provides for a right of access to records as opposed to a right of access to information. It does not require public bodies to provide clarification of any matter that a requester considers to be relevant where the information sought is not contained in a specific record.

In my view, the requests at issue are both excessively broad and unusually detailed. I have also examined the other FOI requests made by the applicant submitted to the Hospital and the additional correspondence between the applicant and the Hospital where she sought further information and documentation on multiple occasions. It seems to me that all of the requests and correspondence made by the applicant seek to pursue similar issues regarding the applicant’s late sister’s care from the Hospital. While I note that in her submissions to this Office, the applicant amended her request in response to the Hospital’s submissions that the requests are overly detailed, it seems to me that even with amendments to the original requests, the level of detail of the applicant’s requests places a very high administrative burden on the resources of the Hospital.

While the applicant disputes that she has made the FOI requests in order to pursue her complaint with the Hospital, it seems to me that they are very clearly linked with her pursuit of her grievance. I should say that the mere fact that a requester is pursuing a grievance with an FOI body does not, of itself, mean that any request for information that might assist the requester in pursuing that grievance is necessarily vexatious. It may be entirely reasonable for a requester who wishes to pursue a grievance to seek to obtain records that will inform a decision as to whether grounds exist for the pursuit of the grievance or the manner in which the grievance should be pursued. Nevertheless, the are limits to which any FOI body must go in dealing with a grievance.

I am satisfied that by any reasonable standards, the level and nature of the applicant’s overall engagements with the Hospital, including the two FOI requests at issue, in relation to her pursuit of her concerns over the care and treatment of her late sister are excessive. The first request of 4 September 2023 in particular is quite broad and unusually detailed. Indeed, the level of engagements the applicant has had with the Hospital suggest that she appears to have had no regard to the burden that those engagements have placed on the Hospital’s scarce resources and her FOI requests are no different in that regard. It is important for requesters to acknowledge that there are practical limits on the extent of the resources that an FOI body must expend in dealing with such requests.

I would add that while the applicant argued that the records requested should be released as they would assist other patients considering treatment at the Hospital, the fact that there may be a public interest in the release of information sought in a request does not mean that the request cannot be refused under section 15(1)(g) of the Act. The section provides an administrative found for refusing a request in particular circumstances regardless of any public interest that might be served by granting the request.

Having carefully considered the submissions from both parties in this case, I am satisfied that the nature of the applicant’s use of FOI in this case, when considered in the context of her other dealings with the Hospital forms part of a pattern of conduct amounting to an abuse of the right of access. I find, therefore that the Hospital was justified in refusing the applicant’s request for records under section 15(1)(g) of the FOI Act on the ground that the requests were vexatious.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Hospital’s decision to refuse the applicant’s requests for records under section 15(1)(g) of the FOI Act.

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Stephen Rafferty
Senior Investigator