Case Number: 160380

Whether the Hospital was justified in refusing to grant access to identifying and other information concerning consultants about whom it had released certain statistical information concerning their compliance 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 5 May 2016, the Hospital received the applicant's FOI request for access to records which he asked to be supplied electronically in so far as possible. The request was for:

"1. The following information held regarding HSE consultants' adherence to their contracts in respect of public vs private practice, from the start of 2012 to the present, for your hospital.

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 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.
(f) the total number of patients seen
(g) the percentage of private and the percentage of public practice (and the respective number of patients)

Additionally, can you provide information about

(g) 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.
(h) Numbers of notifications issued to the consultant regarding the exceeding of the permitted level of private practice.

2. 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 from 2012 to present."

I do not intend to describe the Hospital's decision of 13 June 2016 in detail other than to say that it refused access to the information sought. In particular, it refused to grant access to the information sought at part 1 under various provisions of the FOI Act, including section 37(1) (the personal information exemption). The applicant sought an internal review of the Hospital's decision on 6 July 2016, which the Hospital affirmed on 27 July 2016. On 14 September 2016, this Office received the applicant's application for review of the Hospital's decision.

The review has taken a considerable time to conclude. The delays were largely due to the level of enquiries that this Office had to make into how the Hospital monitors and records compliance by its consultants. I am pleased to note that the Hospital released various records in the course of the review. This release included records that were not covered by the scope of the request in the first place. It recently released statistical records concerning part 1 of the request, from which details that would identify the relevant consultants were redacted.

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 also had regard to the provisions of the FOI Act and to copies of various records relevant to the request, which the Hospital provided to this Office for the purposes of the review.

Scope of the Review

The applicant sought a review of various matters, some of which were settled or withdrawn during the review. The scope of the review is, accordingly, confined to whether the Hospital has justified its refusal to grant access to information that would identify the consultants to whom the released statistical records (regarding part 1) relate. The identifying information that has been withheld is the consultant names, and consultant numbers. However, consultant numbers were not sought by the applicant in his initial request and accordingly, my review cannot consider them.

The review will also consider whether the Hospital has justified its position that certain other requested records do not exist.

The review is not concerned with how the Hospital should, or does, manage compliance by its consultants with the terms of their contracts and it is not part of my remit to seek explanations that the applicant has requested in this regard.

Findings

Section 37 of the FOI Act - Personal Information:
Part 1(a)
The Hospital was invited to make a submission in relation to the provisions of the FOI Act that it relied on. While it did not make any submission on section 37, that provision is mandatory. I am obliged to apply it if I find a record to contain the personal information of someone other than the requester.

The applicant's arguments regarding why the information sought in his request is not personal information, and is releasable in the public interest in any event, were considered by the Commissioner in his decision in Case No. 160509 (see http://www.oic.gov.ie/en/Decisions/Decisions-List/Mr-X-and-Beaumont-Hospital-FOI-Act-2014-.html). That review concerned the applicant's virtually identical FOI request to Beaumont Hospital.

Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing the personal information of a party other than the person(s) seeking the record. Section 2 of the FOI Act defines the term "personal information". It also sets out a non-exhaustive list of 14 examples of "personal information", and three quite narrow exclusions to what shall be considered to be personal information where public servants or persons under contracts for service (contractors in the rest of this decision) are concerned. One of the exclusions provides that the name of a person, in their capacity as a public servant or contractor, is not considered to be their personal information.

In Case No 160509, the Commissioner acknowledged that the identifying information in that case might well fall within the exceptions to the definition of personal information if sought in its own right. However, he noted that the request was not for such information in its own right. He found, as a matter of fact, that parts 1(a) to (g) of the request were all concerned with compliance related information, in that they were governed by "information held regarding ... consultants' adherence to their contracts". He found the identifying information to be personal information about the consultants, which was exempt under section 37(1) of the FOI Act. He also found that none of the exceptions to section 37(1), including the public interest test at section 37(5)(a), required the release of that information.

The facts and circumstances on which the Commissioner directed that access be refused to the identifying information in Case No. 160509 are the same as in this case. Accordingly, I have adopted the Commissioner's analysis for the purposes of this case. I find the consultant names, in the context where they were sought in a request for information about "consultants' adherence to their contracts", to be personal information which is exempt under section 37(1) of the FOI Act. I also find that none of the exceptions to section 37(1), including section 37(5)(a), require their release.

The applicant may wish to note that, if the consultant numbers had been sought in his request in the same context as the consultant names, I would have made the same finding in relation to that information.

Section 15(1)(a) - Records Do Not Exist:
Part 1(g) (i.e. the second part 1(g)) and Part 1(h) - admitting consultants
Parts 1(a) to 1(h) - non-admitting consultants
The Hospital's email to the applicant of 27 January 2017 said that "no action" relevant to part 1(g) had been taken by the Hospital "from 2015 to date" (it later clarified with this Office that the reference to 2015 was a mistake and should have read "2012") . The email said that, while a new Clinical Director was appointed in 2015, the Hospital does not have any records of discussions the Director may have had with individual consultants. It also said that "no notifications" relevant to part 1(h) "issued within the requested timeframe".

The Hospital has also said that it does not record statistics for non-admitting consultants. It seems to me, therefore, that it cannot be in a position to take "action" or issue "notifications" of the sort referred in the request in relation to these consultants.

The Hospital's position is, therefore, that records relating to the above matters do not exist. It is appropriate for me to consider section 15(1)(a), which provides for the refusal of a record that does not exist, or which cannot be found after reasonable searches have been carried out.

This Office told the applicant, on 14 February 2017, that there was no reason for me to go behind the Hospital's position as set out above, unless he had evidence to the contrary. He replied that he "should be given access to any warning letters issued to consultants for being in breach of their ratios". He also referred to unredacted records released on foot of an FOI request he made to another Hospital, and to elements of HSE guidance regarding how consultants who have breached their public:private practice ratio should be advised of such breaches, etc.

Release of records by another Hospital does not create any binding precedent. In any event, and, regardless of the applicant's expectations, I have no reason to dispute the Hospital's clear position that it did not take any steps of the sort set out in the request in so far as admitting consultants are concerned. I am satisfied that records relevant to these aspects of the request, and any records relevant to parts 1(a) to 1(h) in so far as consultants without admitting rights are concerned, do not exist. I find that the Hospital has justified its position that section 15(1)(a) of the FOI Act applies.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Hospital's refusal of those elements of the applicant's request that are subject to review, as set out in the Scope of the Review section above, under sections 37(1) and 15(1)(a) of the FOI Act.

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