Decision
Dr. X & The Health Service Executive/Tipperary University Hospital (‘the Hospital’)
From Office of the Information Commissioner (OIC)
Case number: OIC-144862-Y2M2Z3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-144862-Y2M2Z3
Published on
Whether the Hospital’s decision on the applicant’s request for access to various records relating to births and deliveries was justified under the FOI Act
7 October 2025
The applicant is represented by a solicitor in this matter and therefore all references to the applicant in this decision should be taken to include correspondence with the applicant’s solicitor.
The applicant in this case is an academic researcher. In May 2023, she made an FOI request seeking access to various records relating to augmentation during birth and labour to all maternity units in the State. This case concerns the request made to Tipperary University Hospital on 4/5 May 2023, seeking access to the following:
“We request the following data for the month of October 2022. For each of the questions below, please provide a breakdown into nulliparas and multiparas .
1. Please provide us with the total number of births in October 2022 and a breakdown of full term (from 37 weeks) spontaneous onsets of labour (SoL) vs. induced labours (IOL).
2. Of those with SoL, how many labours were augmented during labour including amniotomy/artificial rupture of membranes (ARM) and augmentation with syntocinon?
3. Of those with SoL who were augmented, please provide a breakdown of type of delivery: how many had a spontaneous vaginal delivery, how many had an instrumental birth (suction cup or forceps) and how many had a c-section?
4. Please provide us with the hospital protocols/policies/standard operating procedures relating to augmentation of labour, and/or management of prolonged labour and/or management of ‘failure to progress’, including references to the national or international clinical guidelines that they are based on.
5. Please provide us with any clinical audit reports relating to augmentation and/or management of prolonged labour and/or management of ‘failure to progress’ that have been conducted in your hospital.”
It appears that the HSE, having considered the applicant’s individual FOI request to each maternity unit, decided to deal with her requests centrally, at a national level. Accordingly, on 20 June 2023, the National Women and Infants Health Programme (NWIHP) office of the HSE issued a decision part-granting the applicant’s request. It provided some information relating to parts 1, 2 and 3 of her request, as well as links to various guidelines. The NWIHP relied on section 15(1)(a) of the FOI Act to refuse access to additional relevant records on the basis that they did not exist or could not be found.
In addition, I understand that on 29 June 2023 the Hospital provided certain information to the applicant. Following further engagement between the parties, I understand that additional clarifications issued to the applicant on 9 August 2023. I further understand that on 19 September 2023 the applicant made an internal review request to the Hospital, but she was informed that NWIHP was dealing with the matter nationally.
As she had received no further substantive response from the HSE or the majority of the maternity units, on 29 November 2023, the applicant applied to this Office for a review of the HSE’s decision on behalf of 18 maternity units. The applicant indicated that one hospital had granted her request in the most part and that she was not seeking a review of its decision.
It would appear that following the applicant’s appeal to this Office, the Hospital, by letter dated 13 December 2023 provided the applicant with certain further statistical information relevant to her request. This correspondence was referred to as an internal review decision by the Hospital. More specifically, the Hospital provided a breakdown, on the basis of nulliparas and multiparas, of births in the Hospital in October 2022 and provided details as to the number of these births which had been augmented via ARM and/or syntocinon/oxytocin. The Hospital also provided information about the outcome of labours which were augmented; namely whether or not they were spontaneous deliveries or an instrumental birth.
Separately, on foot of correspondence from this Office, the NLO issued an effective position letter dated 16 January 2024. It affirmed the NWIHP’s original decision, apparently on behalf of all 19 maternity units, although again, this was not stated. The NLO stated that the HSE’s Hospital In-Patient Enquiry (HIPE) data did not contain information relating to spontaneous onset of labour and that the NWIHP did not hold information in relation to local hospital protocols, policies or standard operating procedures. It essentially stated that the NWIHP and HSE Acute Operations had made “all reasonable efforts to locate relevant information and respond comprehensively to the many sub-components ” of the applicant’s request. It further stated that the NWIHP, as a national office, did “not govern or maintain local hospital information ”.
As part of my review, and in light of the information which had been provided to the applicant by the Hospital in its correspondence dated 13 December 2023 following her appeal to this Office, I contacted the applicant on 15 May 2025 to establish whether, in light of the substantial nature of this information, she was satisfied with the information she had received or whether she wished to continue her review before this Office. By response dated 12 June 2025 the applicant’s solicitors indicated that the applicant considered that certain information was outstanding in the Hospital’s response and as such she wished this Office to continue its review.
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 parties set out above, to the submissions made by the applicant, to the submissions made by the Hospital and by the HSE on this and other related cases in support of its decision. I have decided to conclude this review by way of a formal, binding decision.
As set out above, the applicant considers that further information exists which falls within the scope of her request.
Accordingly, this review is solely concerned with whether the Hospital was justified, under section 15(1)(a) of the FOI Act, in refusing access to further information relating to augmentation of labour falling within the scope of the applicant’s request.
At the same time as the applicant submitted her request to the Hospital for records relating to augmentation of labour, four other members of her research team submitted requests to the Hospital seeking information in relation to other forms of birth and delivery. As set out in the decision of this Office in Case OIC-144713- G5G5Q1, available at the following link, the way in which the requests from the applicant and her team were handled by the HSE has not been up to the standards expected.
As referred to above, the applicant’s request to the Hospital was made at the same time as similar requests to all other maternity hospitals in the state. It would appear that a decision was taken to both escalate and consolidate the requests to multiple Hospitals resulting in the HSE purporting to issue one centralised composite decision and one effective position as referred to above. However, none of the letters stated that the requests had been transferred to another part of the HSE nor did the composite correspondence indicate which maternity units were considered to be encompassed by such correspondence. Furthermore, it appears the HSE then effectively informed the applicant that it did not hold the records sought at a national or corporate level and relied on section 15(1)(a) to refuse access to the applicant’s request.
The sequence of events referred to above, and outlined in greater detail in OIC-144713-G5G5Q1, has frustrated the applicant’s attempts to access the records sought. I would expect the HSE to have regard to the precise nature of the records sought when deciding how to handle such a request in future and in particular, when considering whether to transfer a request to another part of the HSE.
FOI requests 1, 3, 4 and 5
As set out in OIC Case No. OIC-144713-G5T5Q1, the applicant’s request above is No. 2 in a series of five requests submitted by the applicant and four researchers working with her. The applicant is of the view that the HSE’s and the Hospital’s decisions on all five requests should form part of this Office’s review of each decision or deemed refusal to release the records sought.
This Office has addressed her submissions on this matter in OIC Case No. 144713 and I am therefore satisfied that I do not need to consider this further as part of my review in the current case. Accordingly, I can limit my review to FOI request No.2, relating to augmentation of labour. I further recall the comments of this Office in OIC Case No. 144713 wherein it was stated that it remains open to the applicant, or her colleagues, to make new requests to the relevant maternity units for further information in relation to other forms of statistical information in relation to births and deliveries, if this is sought.
Section 15(1)(a) of the FOI Act provides for the administrative refusal of an FOI request where the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.
The role of this Office in such cases is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found, after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI Body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.
As set out above, by correspondence dated 12 June 2025 to this Office the applicant’s solicitors indicated that the applicant considered that certain information was outstanding in the Hospital’s response. Following further engagement with the applicant’s solicitors on 8 July 2025 the applicant indicated that she considered that the information provided by the Hospital was deficient in three key areas; namely:
1. With regard to the information provided in relation to induced births, the applicant’s solicitor indicated that the information provided contained contradictory data for the number of induced births. More particularly, the applicant said that at one point there is a reference to 25 induced births for the month in question whereas elsewhere it refers to 26 induced births. The applicant asked that the Hospital clarify the correct number of induced births.
2. With regard to the information provided in relation to augmented labour, the applicant’s solicitor said the following. The applicant said that the information provided in relation to augmentation of labour was broken down into three categories. However, the applicant said it was unclear from the categorization used as to which category referred to surgical augmentation and which referred to medical augmentation. In addition, the applicant said that it was unclear from the data provided whether some patients had received both forms of augmentation. The applicant therefore sought the following clarifications from the Hospital:
(a) Clarification on the three categories of augmentation referred to; and
(b) Clarification as to whether any patient included in the data set had received both forms of augmentation.
3. Finally, with regard to the information provided by the Hospital relating to the types of delivery, the applicant queried the information provided as there were inconsistencies in the data given. The applicant said the data referred to seven spontaneous vaginal deliveries (SVDs) but then indicated that these were broken down into 11 nulliparous and 6 multiparous. The applicant asked that the Hospital clarify the matter.
On foot of this correspondence from the applicant, I contacted the Hospital and sought further information from them with respect to the applicant’s queries. In response, the Hospital provided me with the following clarifications.
With regard to the applicant’s first query, the Hospital said the figure for induced labour should have read 27 induced births, which was comprised of eight nulliparous and 19 multiparous births. With regard to the applicant’s second query, the Hospital provided the following information: ‘Inductions=29, SVD=17 n(7) m(10)’. The Hospital further said that the reason the data relating to augmentation did not match was because several women had all or some of the methods in labour. However, the Hospital said that in order to confirm how many patients had received multiple methods of augmentation it would need to manually examine the charts of the patients in question. It said that such information is not available electronically and its retrieval would need to be undertaken manually which would take time. The Hospital specifically confirmed that with regard to instances where patients received both surgical and medical augmentation that the information provided to the applicant compiled the information separately. Finally, with regard to the applicant’s third query, the Hospital said that the figure for SVDs in the month in question should have referred to 17 births, broken down into 7 nulliparous and 10 multiparous. In addition, the Hospital said that with respect to the charts which are stored off-site, they would need to be reviewed in order to furnish the applicant with the correct information. It said that this task would be undertaken and the relevant information ‘will be furnished as soon as it has been reviewed and coordinated by the service '.
In light of the Hospital’s response, I followed up once more on 4 September 2025 to see if the analysis of the off-site charts had taken place as envisaged. In its response, the Hospital said that that the Director of Midwifery is not in a position to retrieve over 80 charts from off-site storage to review and provide the correct information. It said that at the time of the applicant’s request, the Director had an administrative staff member who assisted in retrieving the information but that staff member was no long in place. The HSE, on behalf of the Hospital, said that ‘as the information is not readily available we cannot provide any further information that involves the retrieving of so many patient records to obtain/confirm the information requested ’.
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should or might exist.
The question I must consider in this case is whether the Hospital has taken all reasonable steps to ascertain the whereabouts of all relevant records coming within the scope of the applicant’s request. Having regard to the Hospital’s submissions, to the specifics of the matters raised by the applicant and the Hospital’s failure to fully address same, it is not possible for me to conclude that the Hospital has taken reasonable steps to identify relevant records that it holds. Indeed, in the circumstances of the case, it would appear to be the case that the Hospital accepts that further off-site records exist falling within the scope of the applicant’s request which have not been searched. Accordingly, based on the information available to me, I take the view that the Hospital, was not entitled to rely on section 15(1)(a) of the FOI Act in relation to the applicant’s request for information relating to augmentation of labour.
It seems to me that the only logical course of action available to me is to annul the decision and remit the matter to the Hospital to carry out the appropriate searches for the records sought in the applicant’s request, and to make a decision on that basis. The effect of this is that the Hospital must consider the applicant’s request afresh and make a new, first instance decision in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office is she is not satisfied with the Hospital’s fresh decision. I would encourage the Hospital to proactively engage with the applicant with a view to identifying the specific records sought when processing this request.
I also consider it appropriate to comment on the Hospital’s reference that a shortage of staff in the Director of Midwifery’s office meant that it was unable to undertake searches of the off-site records which it had originally indicated would take place. While it is a matter for the Hospital to ensure that it has afforded adequate resources to the FOI function, it is important to note that the administration of the FOI Act is a statutory function which should be afforded as much weight as any other statutory function.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Hospital’s decision on the applicant’s request. I remit the matter to the Hospital in order for it to carry out the appropriate searches and to undertake a fresh decision-making process.
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.
Mary Connery
Investigator