Case 110166

The Senior Investigator annulled the Department's decision and directed that the information sought should be released.

Case Summary

Whether the Department was justified in deciding to defer access to certain information relating to a Hospital, in accordance with section 11(1)(b) of the FOI Act.

Date of Decision: 29.03.2012

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

Background:

On 20 July 2011, the applicant applied to the Department for:

  'a copy of the records, referred to recently by the Minister of Health in relation to Roscommon and Galway hospitals, of mortality rates for Irish hospitals, particularly for Castlebar Hospital. The figure required is the 30 day in-hospital mortality for AMI - Acute Myocardial Infarction. The figures are compiled by the ESRI for the Department under the 'HIPE' headline - which is data on discharges from acute hospitals. Given that Minister for Health has put some of these figures for Galway & Roscommon on to the public record I would argue that it is now in the public interest to disclose the figures for other hospitals'.

On 18 August 2011, the Department decided to defer release of the information under section 11(1)(b) of the FOI Act, on the basis that "a report is in final preparation which will provide the data requested in relation to all hospitals as well as other important indicators" and that it is " expected that the report will be completed by the end of September[2011] and published following discussion with the Minister".

The Department informed the applicant that its decision could be appealed directly to the Information Commissioner.[ There is no internal review available to a requester in respect of decisions to defer access under section 11(1)(b) of the FOI Act.]  The applicant applied to this Office on 19 August 2011 for a review of the Department's decision, where he indicated that the release of the figure for Mayo General Hospital, Castlebar, would suffice to cover his request.

During the course of the review, it became clear that the publication of the report containing the information sought would be delayed and the Department continued to argue that the release of the information prior to the publication of the report would be contrary to the public interest.  Accordingly, I have decided to conclude the review by issuing a binding decision.

In conducting the review, I have had regard to the submissions of the applicant and those of the Department, including an oral submission of 26 March 2012 on the matter.

Conducted in accordance with section 34(2) of the FOI Act by Mr Stephen Rafferty, Senior Investigator, Office of the Information Commissioner ( authorised by the Information Commissioner ("the Commissioner") to conduct this review). 

Scope of Review

The scope of this review is confined solely to the question of whether the Department is justified in deciding to defer access to details of the 30 day in-hospital mortality figures for AMI - Acute Myocardial Infarction - for Mayo General Hospital, Castlebar, as contained in the draft report " Quality Indicators in the Irish Health System: Examining the Potential of Hospital Discharge Data".

Preliminary Matters

Section 34(12)(b) of the FOI Act provides that in a review:-

"a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified".

This puts the burden of proof on the Body to show to my satisfaction that its decision to refuse to grant the request is justified.

Submissions

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Findings

Section 11

Section 11(1)(b) of the FOI Act provides as follows:

" 11(1) Where a request is made under section 7, and 

..............

(b) information contained in the record concerned falls within paragraph (b), (d) or (e) of section 20(2) and the giving of access to the record on or before a particular day ("the specified day") would, in the opinion of the head concerned, be contrary to the public interest,

the head concerned may defer the offering of access to the record to the requester concerned until the day immediately after the specified day."

This section of the Act allows a public body to defer access to a request where the public body believes that the release of information contained in the record would be contrary to the public interest. However, for the section to apply, the public body must also be of the view that the information falls within paragraph (b), (d), or (e) of section 20(2). 

Section 20

Section 20(1) of the FOI Act provides for the refusal of a request if the record concerned contains matter relating to the deliberative processes of a public body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes).  However, section 20(2)(b) provides that subsection (1) does not apply to a record if and so far as it contains, inter alia, "factual information".  The Department, in relying upon section 11(1)(b) to defer access to the information sought, apparently accepted in its original decision that the information fell within the provisions of section 20(2)(b). 

However, in a subsequent submission which this Office received on 2 February 2012, the Department argues that the information is exempt under section 20(1) of the FOI Act and that section 20(2)(b) does not apply.  The Department explains that the information at issue (30 day in-hospital mortality figures for AMI - Acute Myocardial Infarction - for Mayo General Hospital, Castlebar) is being considered by its Chief Medical Officer as part of a feasibility study, the aim of which was to examine a number of  key quality indicators using Hospital Inpatient Enquiry (HIPE) data to assess the feasibility in monitoring quality of care and measuring health service performance, and that the results of this study are to be published in a report.  It argues that identified inaccuracies in the data held on the HIPE system make the figures contained in the report unreliable as an accurate measure of the 30 day survival rate and would mislead the public and, in particular, individuals or families of individuals who received care in the Hospital in the time period concerned.  It appears that the Department's argument is that the information at issue is not factual information in view of possible inaccuracies and is therefore misleading.

I wish to firstly address the question of what constitutes "factual information". This is defined in section 2(1) of the FOI Act, as amended, as follows:

"factual information includes information of a statistical, econometric or empirical nature, together with any analysis thereof".

In previous decisions of this Office, (decision number 030714, 030414 and 050381 available on www.oic.ie), the view was taken that the use of the word "includes" in the definition means that while information of a statistical, econometric or empirical nature should be regarded as factual, regard must also be had to the ordinary meaning of the term when considering a case for review. Accordingly, this Office sees factual information as including material presented to provide a factual background to the central topic in a record. Furthermore, I am satisfied that factual information is distinguishable from information in the form of proposal, opinion or recommendation.

In this case, I note that the Department has no plans to revise the statistical data in the final report in relation to the AMI data for the Mayo General Hospital.  The figures for the Hospital are a factual representation of data taken from the HIPE system.  In the circumstances, I am satisfied that the information at issue can accurately be described as factual information and the question of reliability of the data is not a relevant consideration.  Accordingly, I find that section 20(2)(b) of the FOI Act applies and that the information is not, therefore, exempt from release under section 20(1).  It follows, therefore that the only remaining issue to be considered is whether the Department is justified in deciding to defer access under section 11(1)(b) on the ground that releasing the information before the publication of the report would be contrary to the public interest.

Public Interest

The public interest test contained in section 11 is stronger than those found elsewhere in the Act in so far as it will only justify the withholding of a record where its disclosure on or before a particular day is contrary to the public interest.  There is no need to show that the disclosure of the record is positively in the public interest.  The Department has made a number of arguments as to why the release of the information at issue prior to the publication of the final report would be contrary to the public interest.  In effect, it argues that release would lead directly to negative impacts on the public and have serious public health implications and that releasing inaccurate information would have an impact on and undermine public confidence in future reports that are due to be published and which will provide important data in relation to health care provision in Ireland.  This argument is based on the argument that the information at issue may be inaccurate and, therefore, misleading.  The Department considers that the information may be related by individuals or their families to care that they received in the Hospital giving rise to concerns which might well be unfounded.  Separately, the Department argues that the release of the information may subvert its wider intentions in relation to the improvement of quality of data which, it argues, is not in the public interest.

The applicant, on the other hand, argues that the Minister for Health put the mortality rate for cardiac patients in both Roscommon and Galway Hospitals on the public record in a Dáil debate on 5 July 2011 and that it is very difficult to see how the Department can argue that the release of the information for the third major hospital in that region can be contrary to the public interest.  He suggests, in fact, that it would serve the public interest to release the information relating to Mayo General Hospital to allow for a more informed public debate.

As I have indicated above, for section 11(1)(b) to apply, the Department must satisfy this Office that the release of the information at issue before the publication of the report would be contrary to the public interest.  In my view, the fact that the release of factual information may not be without consequences and may prompt questions from the media or other sources does not, of itself, suggest that release would be contrary to the public interest.  One would imagine that it would be quite easy to provide a fuller explanation to any member of the public who might query the figures or to provide additional explanatory background information when releasing the information sought.

In case number 98166 (available on the Office's website at www.oic.gov.ie), the former Commissioner indicated that he does not accept that the fact that the contents of records might mislead means that release is contrary to the public interest. The argument that releasing certain information may mislead has to be based on either of two assumptions viz, that the public is not capable of properly understanding the information or that the information itself is wrong.  He explained that he made it clear in other decisions that he was not impressed by arguments based on the need to protect the public from possible "misuse" of the information, nor is there any provisions in the Act to exempt the release of information on the grounds that it is factually inaccurate.  In any event, it seems to me that the Department's concerns in terms of the potential for having serious health implications is overstated, and I do not accept that the release of the information at issue is likely to undermine public confidence in future reports. 

On the matter of whether the release of the information may subvert the Department's wider intentions in relation to the improvement of quality of data, I understand that this relates to concerns expressed by some hospitals as to the accuracy of the data contained in the report.  However, I also understand that the Department has since engaged in a consultation process with the hospitals to address concerns relating to its intention to publish the report and I do not see how the release of the information sought in this case could give rise to the harm identified, particularly given that the Department fully intends to publish the report with the information at issue unchanged.

In summary, therefore, I find that the Department has not presented any compelling arguments that shows that the release of the information sought in this case would be contrary to the public interest.  I find therefore, that the Department was not justified in deciding to defer access under section 11(1)(b) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the Department and direct it to release details of the 30 day in-hospital mortality figures for AMI - Acute Myocardial Infarction - for Mayo General Hospital, Castlebar, as contained in the draft report " Quality Indicators in the Irish Health System: Examining the Potential of Hospital Discharge Data".

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 an appeal must be initiated not later than eight weeks from the date of  on which notice of the decision was given to the person bringing the appeal.   

Stephen Rafferty

Senior Investigator

29 March 2012