Whether the Hospital's decision to refuse access to records comprising details of certain policies, practices and statistical information sought by the applicant was justified under Section 10 of the FOI Act.

Case Summary

The Senior Investigator affirmed the Hospital's decision to refuse access to the records sought under section 10(1)(a) and section 10(1)(c) of the FOI Act on the basis that the additional records sought cannot be found or do not exist after all reasonable steps to find them have been taken and on the basis that compiling some of the information required would cause a substantial and unreasonable interference with and disruption of the work of the Hospital.

Date of Decision: 18.11.2009

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner

Background:

The applicant's original request to the Hospital was received by it on 15 December 2008. In the absence of a decision within the statutory period, she made an internal review request by email on 1 February 2009. She also made a further internal review request dated 4 February 2009. The Hospital issued its decision on 2 February 2009 and said that this decision was an internal review decision as it had made a decision to grant part of the request on 12 January 2009; there was no indication that the earlier decision was issued to the applicant. In its decision, the Hospital responded in relation to 11 paragraphs in the applicant's letter of request, providing information or records in relation to paragraphs 7a, 8, 9, 10 and 11 and refusing access to records in relation to paragraphs 2, 3, 4 and 7b on the grounds that section 10 of the FOI Act applied. It regarded paragraphs 1, 5, and 6 as not comprising a request for access to records held. By letter dated 23 February 2009, the applicant applied to this Office for a review of the Hospital's decision.

In reviewing this case I have had regard to the following:

• the Hospital's decision on the matter;
• communications between the applicant and the Hospital ;
• the Hospital's contacts during the course of the review with the Investigator, Ms. Brenda Lynch of this Office;
• the applicant's communications with the Investigator and
• the provisions of the FOI Act.

Ms. Lynch wrote to the applicant and to the Hospital on 2 October 2009 setting out her preliminary views on the case. There having been no further correspondence since then I have decided to bring the review to a conclusion by issuing a formal, binding decision.

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, Office of the Information Commissioner (authorised by the Information Commissioner to conduct this review)

Scope of Review

This review is concerned solely with the question of whether the Hospital is justified, in terms of the provisions of the FOI Act, in its decision to refuse access to records in relation to paragraphs 2, 3, 4 and 7b of the request letter and whether all relevant information held was provided in relation to paragraphs 7a, 8, 9, 10 and 11. I am satisfied that paragraphs 1, 5 and 6 are comments by the applicant and not requests for access to records. I note that the information sought in paragraphs 2, 7a and 9 has been provided to the applicant by the Hospital during the course of the review and therefore, these items are no longer within the scope of this review.

Submissions

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Findings

Preliminary Observations

Under section 34(12)(b) of the FOI Act, a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." It should also be noted that a review by the Commissioner under section 34 of the FOI Act is de novo, which means that it is based on the circumstances and the law as they pertain at the time of this Office's decision.

The applicant argues that she is deeply upset about her treatment and requires the records to provide an explanation of what happened. However, section 8(4) of the FOI Act expressly provides that decision makers shall, subject to the provisions of the FOI Act, disregard any reasons that the requester has, or is believed to have, for making the request. While I appreciate that the information is of great importance to the applicant, the jurisdiction of this Office is confined to adjudicating on her rights to gain access to records held by a public body under the FOI Act.

I should also explain that, in implementing the terms of the FOI Act, the Commissioner is primarily concerned with ensuring public access to extant records in accordance with the provisions of the Act. The Act does not provide for a right of access to records which ought to exist. Therefore, the Commissioner does not have the authority to require a public body to create records where such records do not exist or are not held by it. It is also outside the remit of the Information Commissioner to adjudicate on how public bodies perform their functions generally.

Analysis and Findings

The applicant's request includes a request for a breakdown by consultant of various methods of delivery of babies in the Hospital as well as [more specific information on particular delivery types; the outcomes of such deliveries and the number of women having particular types of deliveries] who were attended by a particular midwife.

Section 10(1)(c)

Paragraphs 3, 4 and 7b of Request

As the Hospital's decision had not specified which subsection of section 10 it was relying on in refusing access to information sought in paragraphs 3, 4 and 7b, clarification was sought by this Office. The Hospital advised that it was relying on Section 10(1)(c) of the Act as the basis for refusing the information sought in paragraphs 3, 4 and 7b. Its position is that compilation of the information sought by the applicant would require the examination of a large number of physical charts as the information is not recorded on the Hospital's computer system and examination of such a large number of charts would cause a substantial and unreasonable disruption to the work of the Hospital.

Section 10(1)(c) provides as follows:

" A head to whom a request under section 7 is made may refuse to grant the request if ...

...(c) in the opinion of the head, 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 work of the public body concerned..."

In its submissions, the Hospital provided the following information to the Investigator in relation to the records covered by paragraphs 3, 4 and 7b:

• In [a year], there were 379 [type X births], 856 [type Y births] and 1615 [type Z births] giving as total of 2,850 cases;
• The Hospital Computer System does not record the name of the Health Care Professional who actually conducts the delivery and this information is only recorded on the physical chart.
• The Hospital Computer System only documents the position of the baby on delivery.

The Hospital further advised that providing the applicant with the information sought would require the examination of:

• 2, 850 charts for paragraph 3.
• for paragraph 4, the 379 charts for [type X births] and then further checking to establish if there was a need to follow up at a gynaecological clinic. For any such cases where a follow up was required, the gynaecological charts would have to be examined to establish the diagnosis in each case.
• for paragraph 7b, the charts of the 530 women who had a [particular type of labour in a year].

Further enquiries were made to the Hospital as to what information is held on the Hospital Computer System and whether there is any possibility that the information sought by the applicant in some of her requests could be extracted with relative ease from the Hospital Computer System. The Investigator met with representatives of the Hospital and reviewed its computer system, including detailed clarification as to the various terms used to describe the fields to be completed in the system. Having pursued the matter with the Hospital, I am satisfied that the nature and number of the records involved and the information sought coupled with the absence of this type of information from its electronic in patient record systems are such that retrieval would cause an undue burden on the resources of the Hospital at this time. I consider that , in all the circumstances, it is reasonable for the Hospital to claim the exemption provided for in Section 10(1)(c). Accordingly, I find that Section 10(1)(c) applies in relation to the records sought at paragraphs 3, 4, and 7b.

Section 10(1)(a)

The Commissioner's Role in "Search" Cases

Section 10(1)(a) of the FOI Act provides that access to 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". In cases such as this, the role of this Office is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public body in looking for records held. The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the records management practices of the public body insofar as those practices relate to the records in question. On the basis of the information provided, a view must be formed as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records.

Paragraph 8

In its decision, the Hospital provided copies of two records, headed "Guidelines/Policies/Procedures Forceps or Vacuum Evacuation" and "Guidelines/Policies/Procedures Indications for Episiotomy" which, in fact, contained indications (as opposed to actual procedures followed) for forceps delivery and episiotomy. The Investigator took the view that these are not records of the Hospital's official procedures for carrying out these interventions which the applicant had sought. The Investigator sought further information from the Hospital. In response, the Hospital advised that it "does not have a written document of how to do a Caesarean, forceps or ventouse but training sessions and discussion of the current evidence in variations in techniques takes place all the time". I am satisfied that section 10(1)(a) of the FOI Act applies to the information sought in this paragraph and find accordingly.

Paragraph 10

In her request, the applicant sought "any additional notes to my personal file from my first request". The Hospital released information in relation to this paragraph of her request including a record of part of her obstetric chart relating to her [....]. As no case has been made and I have no reason to believe that the Hospital holds further personal information records of this nature in addition to those already released, I find that Section 10(1)(a) applies in that no further records exist or can be found.

Paragraph 11 - amendment of record?

The applicant requested [an amendment to the record of her child's birth at the Hospital. The Hospital provided information as to how the birth was recorded.] I considered whether Section 17 of the FOI Act - which gives a right to have a record amended in certain circumstances where the information is misleading, incomplete or incorrect - might apply to this part of the request. I find that this paragraph of the request as made does not meet the requirements of Section 17 as it does not specify the record concerned nor does it include appropriate information in support of the application as required by Section 17(2)(a) and (b) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I find that Section 10(1)(c) of the FOI Act applies to the information sought in paragraphs 3, 4, and 7b and that Section 10(1)(a) of the FOI Act applies to paragraphs 8 and 10. I hereby affirm the decision of the Hospital in this case to refuse the request for access to the additional records.

Right of Appeal

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 a review must be initiated not later than eight weeks from the date of this letter.

Elizabeth Dolan

Senior Investigator

18 November 2009