Case 010072. Request for statistics concerning specific activity within St Clare's Unit of the Hospital (the Unit) between 1987 to 1999 inclusive - whether records specifically containing the requested information exist - whether records specifically containing the requested data must be compiled, in the event that the requested information is contained in a variety of records - section 10(1)(a) - in the event that such records must be compiled, is it reasonable to direct the Hospital to do so - section 10(1)(c).

Case Summary

Facts

The requester sought access to statistics concerning specific activity in the Unit from 1987 to 1999 inclusive. The Hospital's position was that:

(i) the Unit was not established until 1988 so it did not have any statistics in relation to the Unit's activity in 1987;

(ii) it is not required to furnish statistics of the type sought by the requester to any body or person and that the statistics collated by it do not contain the information sought;

(iii) it cannot now locate any statistical returns to the then Department of Health which it provided on a courtesy basis for a number of years after the Unit was set up;

(iv) it has a database containing data from the years 1996 to 1999, but queries run on the database suggest that it is unreliable and does not provide accurate information;

(v) to grant the request would involve a manual examination of the files of each child seen by the Unit from 1988 to 1999, as well as a file titled "No Appointments Given", from which information pertaining to each element of the request (where such information exists) could be extracted and collated and on foot of which a new document could be created.

Decision

The Commissioner noted that section 6 of the FOI Act provides for a right of access to be given to "any record held by a public body" and that section 7 provides that a person wishing to exercise that right "shall make a request ... for access to the record concerned...". She concluded that the FOI Act provides a right of access only to records which already exist and that it does not require the creation of records in order to grant a request.

In saying this, the Commissioner also had regard to section 12 of the FOI Act which concerns the manner in which access may be given to a record. While section 12 refers to access being granted to a record by transcribing or decoding the information in a record, the language of that section suggests that the information that requires such transcription or decoding must be contained in an identifiable record. She was satisfied that a request for information is only a valid request under the FOI Act in so far as it may be construed as a request for access to an existing identifiable record that contains that information. Given that no record currently exists which contained the precise detailed information sought by the requester, the Commissioner found that section 10(1)(a) applied to the request in its entirety.

The Commissioner noted that it could be suggested that records exist which, subject to the redaction of any personal information therein, could be described as being the identifiable records, the subject of the request. She also noted that it could be argued that edited copies of the records concerned could be released without any document being created in order to provide the requester with "total numbers" of each element of the request. However, she was satisfied that the release to the requester of redacted copies of any relevant records would be misleading, given that section 13 of the FOI Act provides that an edited copy of a record shall not be produced if the copy provided for thereby would be misleading. She found that such edited copies of the records should not be released.

The Commissioner was also satisfied that in this case, even if she considered that the FOI Act required the compilation of a record to grant a request, such a direction would be an unreasonable interference with the Hospital's work and that section 10(1)(c) of the Act would apply in any event.

Date of Decision: 11.02.2005

Our Reference: 010072

11.02.2005

Mr X

Dear Mr X

I refer to your application to this Office under the Freedom of Information Act, 1997 (the FOI Act) for a review of the decision of the Children's University Hospital, Temple St (the Hospital) on your request dated 24 April 2000. Your request sought statistical information pertaining to St Clare's Unit of the Hospital (the Unit) for the years 1987 to 1999 inclusive. Please accept my apologies for the delays which have arisen in dealing with this and other applications you have made to this Office.

Background

On 24 April 2000, you sought statistics from the Hospital under 19 different headings, as follows:

1. The total number of alleged or suspected cases of child sexual abuse reported to the Unit for the years 1987-1999.
2. The total number of alleged or suspected cases of physical abuse of children reported to the Unit for the years 1987-1999.
3. The total number of alleged or suspected cases of neglect of children reported to the Unit for the years 1987-1999.
4. The total number of alleged or suspected cases of emotional abuse of children reported to the Unit for the years 1987-1999.
5. The total number of all forms of child abuse reported to the Unit for the years 1987-1999.
6. The total number of alleged or suspected cases of child sexual abuse confirmed by the Unit for the years 1987-1999.
7. The total number of alleged or suspected cases of child sexual abuse where report unconfirmed and investigations continued for the years 1987-1999.
8. The total number of alleged or suspected cases of child sexual abuse where report unconfirmed and case closed for the years 1987-1999.
9. The total number of alleged or suspected cases of child sexual abuse where report confirmed as non-abuse for the years 1987-1999.
10. The total number of alleged or suspected cases of child sexual abuse reported by the Gardaí to the Unit and the total number reported by the Unit to the Gardaí for the years 1987-1999.
11. The total number of alleged or suspected cases of child physical abuse where report confirmed for the years 1987-1999.
12. The total number of alleged or suspected cases of child physical abuse where report unconfirmed and investigations continued for the years 1987-1999.
13. The total number of alleged or suspected cases of child physical abuse where report unconfirmed and case closed for the years 1987-1999.
14. The total number of alleged or suspected cases of child physical abuse where report confirmed as non-abuse.
15. The total number of alleged or suspected cases of child physical abuse reported by the Unit to the Gardaí for the years 1987 to 1999.
16. The total number of alleged or suspected cases of child physical abuse reported by the Gardaí to the unit for the years 1987 to 1999.

You said that you sought the same detailed information in relation to alleged or suspected cases of child emotional abuse and neglect of children for the years 1987 to 1999.

Your request also sought the following additional information:

1. (to which I will refer in this decision as item 17 of your request) The total number of alleged or suspected cases of child sexual abuse reported to the Unit which resulted in a prosecution under criminal law for the years 1987 - 1999.
2. (to which I will refer in this decision as item 18 of your request) The total number of alleged or suspected cases of child sexual abuse reported to the Unit which resulted in a conviction before a court of criminal law for the years 1987-1999.
3. The total number of alleged or suspected cases of child abuse, (physical, emotional and neglect) reported to the Unit which resulted in a conviction before a court of criminal law for the years 1987 to 1999.

The Hospital told you, on 1 August 2000, that it would be able to respond to items 1, 6, 8, 9 and 10 of your request (where it pertained to statistics gathered from 21 April 1998 onwards) but that to compile that information would take some time. By 15 October 2000, you had not received any of the information sought by you in your request, and you applied for an internal review of the Hospital's effective refusal of that request. On 9 November 2000, the Hospital supplied you with a figure for referrals to the Unit from 1997 to 1999, but said that problems with its database software meant that it was unable to respond to questions 6 and 9 of your request at that time. The Hospital's letter did not refer to any other element of your request. On 18 February 2001, you made your application to this Office, following which the Hospital later said that it had misfiled your application for internal review.

In the course of my review, I understand that the Hospital sent you some documentation on 6 October 2003, and again on 1 December 2003, but that you were not satisfied with their content. Copies of that documentation were also sent to this Office. I also note that Ms Moran told you, in her letter of 18 June 2004, that the Hospital had provided this Office with figures for St Clare's Unit from 1990 to 1999. I understand that the Hospital has released this data to you. Insofar as some elements of this data correspond to items 1 and 5 of your request, I note that the data does not answer these elements of your request in full, and also contains data of a nature which is extraneous to your request. It seems to me, therefore, that items 1 and 5 of your request cannot be ruled out by me on foot of this data being released to you.

In conducting this review, I have had regard to various correspondence between Ms Moran of my Office and the Hospital, including Ms Moran's notes of a meeting she had with representatives of the Hospital on 28 November 2003. I have also had regard to details of contacts, both written and by telephone, between you and Ms Moran, particularly Ms Moran's letters to you of 30 June 2003, 18 June 2004 and 21 October 2004. Finally, I have conducted this review in accordance with the provisions of the Freedom of Information (FOI) Act, 1997, as amended by the Freedom of Information (Amendment) Act, 2003. All references in this letter to particular sections of the FOI Act refer to the FOI Act, 1997 as amended.

Scope of Review

In your meeting with Ms Moran of 11 July 2003, you agreed to confine your request to items 1, 5, 6, 7, 8, 9, 10, 17 and 18 (as described above). Accordingly, the issue arising in this review is whether the Hospital's refusal to supply you with the details, specified in these request items, is in accordance with the FOI Act. Specifically, the issues requiring to be answered in this review are:

• whether records are held by the Hospital which would give you the above information, and if so, whether the Hospital has taken all reasonable steps to locate such records, or
• whether granting the request would, by reason of the number or nature of records concerned, require the retrieval and examination of such number of records concerned as to cause a substantial and unreasonable interference with, or disruption of, the work of the Hospital.

Findings

Preliminary Matters

In her letter of 30 June 2003, Ms Moran explained that the FOI Act does not impose an obligation on a public body to create a record where none exists, nor does it generally provide a mechanism for answering questions except to the extent that a question can reasonably be inferred to be a request for a relevant record which contains the answer to the question asked. She also drew your attention to the fact that, under the FOI Act, access to records which were created before the commencement date of the FOI Act (21 April 1998 in the case of the Hospital) is limited to two situations, viz.

(i) where access to pre-commencement records is necessary or expedient in order to understand a record created after 21 October 1998 [section 6(5)(a) of the FOI Act] and
(ii) where such pre-commencement records relate to personal information about the person seeking access to the record [section 6(5)(b) of the FOI Act].

In her letter of 18 June 2004, Ms Moran also told you that, in cases involving searches conducted for records, it is not this Office's role to conduct a physical search for the particular records. I view my role as one of reviewing the decision of the public body and deciding whether its decision was justified. That understanding was upheld in the judgement of the High Court in the case of Matthew Ryan & Kathleen Ryan and the Information Commissioner (2002 No. 18 MCA) where Mr. Justice Quirke stated

"I am satisfied that the respondent's (the Commissioner) understanding of his role, as outlined in evidence, was correct in that he was not required to search for records but was required rather to review the decision of the Department and in doing so to have regard to the evidence which was available to the decision-maker and to the reasoning used by the decision-maker in arriving or failing to arrive at a decision".

Relevant Provisions

Section 10(1)(a) of the FOI Act provides that a request for a record may be refused if

"the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken".

Section 10(1)(c) of the FOI Act provides that a request for a record may be refused if

"...granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with or disruption of the work of the public body concerned" .

I believe that these are the provisions which must be considered in this case.

The Records

In Ms Moran's letters of 18 June 2004 and 21 October 2004, she outlined the position as set out by the Hospital. It is the position of the Hospital that:
(i) the Unit was not established until 1988 so it does not have any statistics in relation to the Unit's activity in 1987;
(ii) it is not required to furnish statistics of the type sought by you to any body or person and that the statistics collated by it do not contain the information sought by you;
(iii) it cannot now locate any statistical returns to the then Department of Health which it provided on a courtesy basis for a number of years after the Unit was set up;
(iv) it has a database containing data from the years 1996 to 1999, but queries run on the database suggest that it is unreliable and does not provide accurate information;
(v) to grant your request would involve a manual examination of the files of each child seen by the Unit from 1988 to 1999, as well as a file titled "No Appointments Given", from which information pertaining to each element of your request (where such information exists) could be extracted and collated and on foot of which a new document could be created.

Following careful consideration of the matter, and having regard to the very detailed exchanges between my Office and the Hospital in the course of this review, I accept the case presented by the Hospital as summarised above.

Application of section 10(1)(a)

While it is open to a public body to create a record on foot of an FOI request, as did Our Lady's Hospital for Sick Children on foot of a similar request you made, it should be noted that section 6 of the FOI Act provides for a right of access to be given to "any record held by a public body". Section 7 provides that a person wishing to exercise that right "shall make a request ... for access to the record concerned...". Therefore, I am of the view that the FOI Act provides a right of access only to records which already exist and that it does not require the creation of records in order to grant a request.

In saying this, I have also had regard to section 12 of the FOI Act which concerns the manner in which access may be given to a record. While section 12 refers to access being granted to a record by transcribing or decoding the information in a record, the language of that section suggests that the information that requires such transcription or decoding must be contained in an identifiable record. Accordingly, I am satisfied that a request for information is only a valid request under the FOI Act in so far as it may be construed as a request for access to an existing record that contains that information.

Ms Moran's letter of 18 June 2004 told you that the Hospital would only be able to respond to some elements of your request and, to do so, would have to extract information from a number of files in order to create a new record which would provide the information sought by you in your request. Therefore, it is clear that no record currently exists which contains the precise detailed information sought by you in your request. I am of the view, accordingly, that section 10(1)(a) applies to your request in its entirety.

Do records exist which contain information of the type sought in your request?

In respect of some elements of your request (figures concerning referrals to the Gardaí, figures concerning the Unit's activity in 1987 and items 17 and 18), the Hospital says that it does not maintain such information and, therefore, no record of that data exists in any form. Ms Moran outlined the Hospital's position in respect of these elements of your request in her letter to you of 18 June 2004. I have no reason to dispute the Hospital's position in respect of these elements of your request and am satisfied that section 10(1)(a) applies in that no record exists that contains such information.

You may argue that records exist which, subject to the redaction of any personal information therein, could be described as being the identifiable records, the subject of your request. However, even if I considered it reasonable to expect the Hospital to examine such records manually, the information therein would still have to be collated and compiled into a record that would correspond to your request for "total numbers" of the various categories of information sought by you. I have already found that the FOI Act does not require me to direct that such a record be created. However, you might argue that the release to you of edited copies of the records concerned, without any document created in order to provide you with "total numbers" of each element of your request, would meet your request. On this basis, it would be a matter for you to examine the redacted records and calculate "total numbers" in respect of each element of your request.

However, section 13 of the FOI Act, which provides for the editing of records in order to protect any exempt information that may be contained therein, also provides that such edited copies shall not be produced if the copy provided for thereby would be misleading. I am satisfied that the release to you of redacted copies of any relevant records would be misleading, and that I should not direct that such edited copies be released to you.

Application of section 10(1)(c)

Even if I were of the view that the FOI Act required me to direct the Hospital to gather the information concerned (to the extent that such information actually exists) and compile a record that would answer your request, I would have to consider whether it would be reasonable to direct the Hospital to do so. This issue would arise also were I to consider directing the release to you of edited copies of any relevant records, that is, without directing that a record be created to provide you with "total numbers" in respect of each element of your request.

In her preliminary views letter Ms Moran described how the Hospital, in order to gather information of the type sought, would have to examine manually all files held by it in relation to children assessed between 1988 and 1999; in addition, it would have to examine manually all the information in its file titled "No Appointments Given". Ms. Moran set out the Hospital's assessment that this exercise could occupy one person for 52 working days or 10.5 working weeks, even if the entire task took only ten minutes per file/child (working non-stop). Furthermore, that estimate did not take account of any time that might be spent blocking out personal information of persons referred to in those records and photocopying such redacted records.

Ms Moran also told you that the Hospital submitted that, given its waiting list of children who need to be assessed, it does not have the resources to divert clinical time away from the assessment of children to gather and collate the information that you require. It can be inferred from this that it believes it does not have the spare resources to provide edited copies of any records that may be relevant.

I accept the Hospital's position. I take the view that to expect the Hospital to examine the files concerned manually would be an unreasonable interference with its work and that section 10(1)(c) of the FOI Act would apply, even if I were satisfied that the FOI Act could oblige it to create a record on foot of your request, or if I were satisfied that the Hospital might release to you redacted copies of any records it may hold that are relevant to your request. This finding applies equally to those elements of your request which might be fully responded to by means of assessment of the "Referrals Book" only (items 1 and 5). It seems to me that, to require the Hospital to examine the Referrals Book and collate the number of referrals of child sexual abuse made to it from 1988 to 1999, and in addition to examine the "No Appointments Given" file in order to compile the total number of all referrals recorded by the Unit in those years, would also be an unreasonable interference with the Hospital's work. This finding is strengthened in the light of there being a waiting list for the Unit's services. Thus, if I were satisfied that the FOI Act could require the Hospital to create such a record, I am satisfied that section 10(1)(c) would also apply. I am also satisfied that section 10(1)(c) would apply in the event that I were of the view that a redacted copy of the relevant entries in the Referrals Book might be released to you.

Other Exemptions

The majority of the information you are seeking, if it existed, would be contained in records created prior to the commencement of the FOI Act (21 April 1998). As you know, and I feel it is not necessary to set this out in detail, such pre-commencement records would be releasable only if one or other of the provisions of section 6(5) of the FOI Act were to apply. In relation to section 6(5)(a) of the FOI Act, you have not contended that there exists any record, created after 21 October 1998, which cannot be understood without reference to such earlier records. Furthermore, I am not aware of the existence of any such record. Accordingly, if I were required to do so, I would find that a right of access does not arise to either the information you are seeking, or particularly, to edited copies of the records themselves, under section 6(5)(a) of the FOI Act.

The other scenario where a person might have a right of access to a pre-commencement record is where the record relates to personal information about the person seeking access to the record [section 6(5)(b) of the FOI Act]. In your correspondence with this Office, you said that you intended to rely on the High Court judgement issued on 21 December 2001, in the case EH and the Information Commissioner . In that judgement, O'Neill J. set out the approach to be taken in construing the term "relate to personal information" as contained in section 6(5)(b) of the FOI Act. He noted that it is "absolutely clear from the use of the phrase 'relates to' that a document need not itself contain 'personal information' about the requester". He identified the relevant test to be applied, in determining whether or not a record relates to personal information, as:

“... ' whether there is a sufficiently substantial link between the requester's personal information (as defined in the Act) and the record in question'. I do not think one should go further than this in formulating a test in this regard. "

O'Neill J. further elaborated:

" If the record contains an express reference to the requester, be it however insubstantial or trivial then clearly it 'relates to personal information', about the requester. Here one would have in mind records such as letters which contained no personal information but are about or refer to the requester, such as holding type letters or pro forma or replies. Where the record does not name or has no express reference to the requester a substantial link will be established, if the record relates to something in which the requester has a substantial personal interest, as distinct from something in which he has an interest as a member of the general community or of large scale class of the same. "

In your case, it is clear that there would be no express references to you in the records concerned. Leaving aside the issues of whether relevant records actually exist, and the issue of whether redacted records might be released, the question arises as to whether any such records would relate to personal information about you.

I understand from the Hospital that neither you nor your child ever attended the Unit. In these circumstances, it seems to me unlikely that I would be satisfied that there was a "substantial link" between you and the information in the pre-commencement records concerned. On this basis, section 6(5)(b) would not be relevant. I appreciate that, in the light of the Hospital's position that there exists no record containing the information you are seeking, you were not asked to expand on your position.

In any event, as I am satisfied that section 10(1)(a) applies to your request, there is no need for me to consider the application of section 6(5)(b) of the FOI Act further.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 (as amended), I hereby affirm the Hospital's decision in this case. My decision is based on the application of section 10(1)(a) of the FOI Act together with my view that section 10(1)(c) of the FOI Act would apply even if relevant records did exist.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date of this letter.

Yours sincerely

Emily O'Reilly
Information Commissioner