Case Number: 160379

Whether the Hospital was justified, under section 30 and/or 37 of the FOI Act, in refusing access to records concerning its monitoring of compliance by consultants with the public/private mix requirements of their contracts

Conducted in accordance with section 22(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 13 July 2016, the Hospital received an FOI request from the applicant for the following information, which he asked to be supplied electronically in so far as possible:

"1. The following information held regarding the adherence of consultants at [the Hospital] to their contracts in respect of public vs private practice, from the start of 2012 to the present.

In presenting the information, can you please provide the information broken down by each Acute Hospital by month, with details of each consultant by -

(a) The consultant name
(b) His/her Speciality and Sub-speciality
(c) Consultant Contract (e.g. Consultant Contract 1997, Consultant Contract 2008) and Type Type (sic) or category of contract e.g. Category I, Category II, Type A, Type B, Type B*, Type C, including permitted level of private practice i.e. 80:20 or 70:30.
(d) the total number of patients seen
(e) the percentage of private and the percentage of public practice (and the respective number of patients)

Additionally, can you provide information about

(f) what action was taken as a result by a Hospital Group Chief Executive Officer/Chief Officer or Community Health Organisation or the relevant senior manager prior to the establishment of the Hospital Groups and Community Health Organisations. (By action, I mean what, if any, action was taken by the Hospital Group CEO (or, prior to the Group's establishment, a relevant senior manager) in response to alleged breach of consultant's contracts e.g. warning letters etc)
(g) Numbers of notifications issued to the consultant regarding the exceeding of the permitted level of private practice.
(h) Can you please also provide all "overall status reports" for example the "Consultant Workload Status Report v2" or similar template for each hospital prepared for HSE monitoring and for each quarter of (sic) from 2012 to present."

The Hospital issued its decision on 29 July 2016. It refused access to the information sought at parts (a) to (g) under sections 30(1)(b) and 37(1) of the FOI Act (provisions concerning, respectively, management functions and personal information). In relation to part (h), the Hospital explained that hospitals produced reports for HSE monitoring purposes only up to Quarter 1 of 2014. It said that, at this point, responsibility for monitoring was delegated to the newly established Hospital Groups and so it was, "strictly speaking, ... no longer producing reports for HSE monitoring purposes from Quarter 2 [of 2014]." However, it released the reports it had prepared for HSE monitoring purposes, in addition to "the equivalent data for the period following that change" up to March 2015.

The applicant sought an internal review of this decision on 3 August 2016. On 26 August 2016, the Hospital issued its internal review decision. It affirmed its earlier decision and released further "Consultant Workload Status Reports" up to Quarter 1 of 2016.

On 14 September 2016, this Office received the applicant's application for review of the Hospital's decision.

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above; and to correspondence between this Office, the Hospital, and the applicant. I have had regard also to the provisions of the FOI Act.

Scope of the Review

This review is confined to whether or not the Hospital has justified its refusal to fully grant the applicant's request.

Findings

Parts (a) to (g)

During the review, the Hospital confirmed that its refusal of parts (a) to (g) of the request was based on a general appraisal of the type of information sought. It has not gathered, or considered for release, any relevant records. The application of provisions such as sections 30 and 37 of the FOI Act, and the consideration of the relevant public interest tests, must have regard to the content of the records being withheld under these exemptions. Consideration of the public interest may also have to take account of such matters as the circumstances of apparent non-compliance. However, without it first having been established what records within the scope of the review are held, it is not possible for this review to consider the relevance of sections 30 or 37 of the FOI Act.

The most appropriate decision for me to make in the circumstances is to annul the Hospital's refusal of parts (a) to (g) of the request and remit those aspects of the request for fresh consideration in line with the requirements of the FOI Act.

However, I think it necessary to make a few general comments regarding this remittal.

I have not considered the extent to which relevant records exist, or the extent to which they are held electronically or in paper form. Neither have I considered what would be involved in searching such records for relevant information, nor whether information in any such records is required to be released under the FOI Act. As the applicant is aware, the fact that some Hospitals may apparently easily retrieve the information requested by him, or the fact that such Hospitals may have granted access to most or all of the information concerned, does not create any precedent by which other Hospitals or this Office are bound.

Generally speaking, when I remit requests for fresh consideration, I expect the relevant body to firstly identify and gather the requested records, and then consider whether they are exempt from release. The Hospital has already indicated that it does not hold a discrete record containing the requested information. It also suggests that it would take considerable time to extract the requested information from other records it holds, which I understand are held within its Hospital's HIPE and Finance units, and in the Human Resources Department and/or the Chief Executive's Office. However, in the event that some or all of the relevant details are held electronically, the Hospital should have proper regard to section 17(4) of the FOI Act. Section 17(4) requires the creation of a record containing all relevant information that can be extracted from a database by taking "reasonable steps" i.e. "steps that involve the use of any facility for electronic search or extraction that existed on the date of the request and was used by the FOI body in the ordinary course".

If some or all of the relevant information is not held on a database, the Hospital must consider if paper records might contain the information requested. That said, the Hospital is not required to create composite records detailing the information concerned; neither is it required to create formal or typed-up versions of any hand-written records it may have created in the validation process.

Furthermore, if the Hospital considers that the exercise of retrieving and examining the relevant records would be likely to unreasonably interfere with its work, it is open to it to rely on section 15(1)(c) of the FOI Act. Section 15(1)(c) provides that a request may be refused where "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 (including disruption of work in a particular functional area) of the FOI body concerned. However, section 15(4) provides that section 15(1)(c) shall not be applied unless the FOI body has assisted, or offered to assist, the requester to amend the request for re-submission such that it no longer falls within section 15(1)(c).

Any decision by the Hospital to rely on section 15(1)(c) is subject to the usual rights of internal and external review, as is any decision it might make to refuse access to any relevant records it may decide to retrieve.

Part (h)
The applicant has said he is satisfied with the records provided to him relevant to this aspect of his request.

He has not argued that I should consider the possible release of "Consultant Workload Status Reports" covering the period from March 2016 onwards. However, I should make it clear that this Office does not have remit to consider any such reports. It is clear from the Hospital's decisions that any "Consultant Workload Status Reports" prepared from the second quarter of 2014 onwards were not "prepared for HSE monitoring". Such records therefore do not fall within the scope of part (h) of the applicant's request.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Hospital's refusal of parts (a) to (g) of the applicant's request. In the circumstances of this case, a remittal of these parts of the request is appropriate. I direct the Hospital to undertake a fresh decision making process on parts (a) to (g) and inform the applicant of the outcome in accordance with section 13 of the FOI Act. The effect of this is that the Hospital is required to make a new, fresh instance, decision.

Right of Appeal

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.

Elizabeth Dolan
Senior Investigator