Decision
Dr. X and Health Service Executive
From Office of the Information Commissioner (OIC)
Case number: OIC-144864-D1K9M2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-144864-D1K9M2
Published on
Whether the Hospital’s deemed refusal of the applicant’s request for access to various records relating to births and deliveries was justified under the FOI Act
13 May 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 University Hospital Kerry 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.
I understand that the applicant made an internal review request to the Hospital in June 2023 on the basis of a deemed refusal, but that she was informed that NWIHP was dealing with the request and that she could seek an internal review of its decision. As she received no further records or substantive response, the applicant made another internal review request to the HSE National Lead Office (NLO) and the individual maternity units on 19 September 2023.
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.
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”.
Following receipt of the effective position letter, the applicant indicated that she was not satisfied with the HSE’s decisions or the hospital’s deemed refusals of her FOI request.
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.
This review is therefore solely concerned with whether the Hospital was justified, under section 15(1)(a) of the FOI Act, in refusing the applicant’s request for information relating to augmentation of labour.
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 here , 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.
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.
As set out above, the applicant made her original request to the Hospital directly. This request was effectively transferred to the NWIHP, which issued its decision on 20 June 2023. As set out above, in the decision which issued from the National Programme Director of NWIHP, reliance was placed on section 15(1)(a) of the FOI Act. This provision 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 part of my review, I contacted the Hospital to obtain further information with regard to the manner in which it had handled the applicant’s request. In response, I was informed by the FOI decision-maker for the South/Southwest Hospital Group said that ‘the local hospital decision makers were not involved in the decision-making or internal review process’ with respect to this request. I was further informed as the effective position issued from NWIHP, it was more appropriate to contact the HSE FOI National Lead Office in relation to the matter. I duly contacted this Office and was informed that ‘an effective FOI decision and/or clarification submission from the respective local Maternity Units at the named Acute Hospitals would be an appropriate response to assist [the applicant] and her research team colleagues’. In addition, reference was made to a letter which issued from the National Programme Director of NWIHP to the applicant on 12 January 2024. In the circumstances of the case I am satisfied that this corresponds with the letter dated 16 January 2024 as referred to above. The HSE FOI National Lead Office said that the effective position outlined in this letter reflects the extent of records held at the ‘HSE centre level’ and reiterated that the information sought by the applicant is more appropriately under the control of the respective local maternity units.
Finally, it is important to note that beyond the above information, I did not receive any responses from either the Hospital or the HSE National Lead Office with respect to the detailed queries I had put with regard to the searches which had been conducted following receipt of the applicant’s request.
In addition, as noted in this Office’s decision in OIC Case No. 144713, the HSE’s has published a Maternity Safety Statement guidance book, which relates to the collation and publication of maternity-related statistics from the various maternity units in the State. This document provides that such statistical data should be sourced directly from each maternity unit, rather than from national-level datasets such as HIPE referred to above. As the previous decision of this Office indicated, it would appear clear that in the circumstances it should have been clear to the HSE that the specific information sought by the applicant was held at a local rather that at a national level.
On the basis of the above responses, 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 did not carry out any searches for records at all. In these circumstances, I take the view that the HSE, on behalf of the Hospital, was not entitled in its decision 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.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Hospital’s deemed refusal of 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