Case Number: 160509

Whether the Hospital was justified in refusing to grant access to records concerning its monitoring of compliance by consultants with the public/private mix requirements of their contracts

Conducted by Peter Tyndall, Information Commissioner

Background

On 8 July 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 the adherence of consultants at [the Hospital] (i.e. with [Hospital] contracts, within [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, 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.
(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 consultants' 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 prepared for HSE monitoring and for each quarter of from 2012 to present."

The Hospital issued its decision on 9 September 2016. It told the applicant that it was refusing access to information for 2015 (and presumably for 2016 up to the date of receipt of his request) on the basis that "information for 2015 is not available or processed at this time." It outlined general details of relevance to aspects of the request. It released some statistical information relevant to parts 1(a) to (e), but which referred to "Directorates" rather than consultants' specialty or sub-specialty, and which listed general reference numbers for the relevant consultants instead of their names. The Hospital refused access to the names, specialties and sub-specialties of the consultants under section 37(1) of the FOI Act (which concerns personal information). It released a number of reports relevant to part 1(h). The decision also indicates that the Hospital did not consider or decide on any records relevant to parts (f) and (g) of the request, which is an effective refusal of access to the records concerned.

The applicant sought an internal review of this decision on 18 October 2016. On 10 November 2016, the Hospital affirmed its earlier decision.

On 17 November 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 and also to copies of the records at issue, which were provided to this Office for the purposes of my review.

Scope of the Review

This review is confined to whether or not the Hospital has justified the following:

• its initial refusal under section 37 of the FOI Act to grant access to the names, specialties and sub-specialties of the consultants about whom non-identifying, compliance-related, information relevant to parts 1(a) to (e) of the request has been released.

The applicant told this Office, on 27 January 2017, that he was "open to the suggestion of narrowing scope to 'specialty' only" where "speciality is defined by the Medical Council." It would not be appropriate for me to exclude information from my review on such a conditional basis.

• its effective refusal to grant access to records relevant to parts (f) and (g) of the request generally and
• its refusal to grant access to any information relevant to parts 1(a) to (e) of the request for 2015 and 2016 up to the date of receipt of the applicant's request, on the basis of its apparent position that such records do not exist. Section 15(1)(a) would, in the circumstances, appear to be the relevant provision, which provides for the refusal of a record that does not exist, or which cannot be found after reasonable searches have been carried out.

In relation to part 1(h) of the request, the applicant's email to this Office of 13 February 2017 acknowledges that he "do[es] have the consultant status workload reports for up to the end of 2014" but asks me to consider compelling the Hospital to release such reports for 2015/2016. However, his email to this Office of 22 February 2017 says, under a general heading concerning part 1(h), that he "was released those records, which relate to consultants' workload reports." I have taken it, accordingly, there is no need for me to consider part 1(h) further.

The review is not concerned with how the Hospital manages compliance by its consultants with the terms of their public contracts. It is not part of this review to seek explanations that the applicant has requested in this regard. For instance, I see no need to probe the Hospital's position, as stated in its original decision, that "[t]he process for reviewing consultant compliance is only applicable to consultants who hold type B, B* and C posts" and accordingly does not extend to other consultants.

Preliminary Matters

At the outset, it is relevant to note a number of preliminary matters.

Section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons (whether stated or suspected) for the request.

Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I take the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified. However, in a case such as this, involving the interests of other parties, it is important that those rights are given due consideration.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record.

Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Findings

The Hospital was invited to make a submission in relation to the application of sections 15(1)(a) and 37 of the FOI Act in this case.

Parts 1(a) to (e): Names, Specialties and Sub-Specialties of Consultants
Under the heading "Personal Information", the Hospital's submission says that it "will provide the requester with the consultants' name and sub-specialty for the years 2012 to 2014." It made no submissions on section 37.

Although section 22(12)(b) places the onus on the Hospital to justify its refusal of records, and the Hospital is willing to release the requested names, etc, the fact is that section 37 is a mandatory exemption. I am obliged to apply it if I consider the content of a record under review to contain personal information. It is appropriate for me, accordingly, to decide whether the withheld consultant names, specialties and sub-specialties, in the context of this particular request, are exempt under section 37 of the FOI Act. However, I will firstly deal with the applicant's view (as set out in his submission to this Office of 22 February 2017) that the details specified at parts 1(a) to (c) of his request "amount to a simple register of consultants with their relevant contract details".

Parts 1(a), (b) and (c) - "a simple register"
The applicant's submission refers to a decision made by this Office in 2016 (Case No. 160203, Ms Oonagh Smyth and the HSE) on a request very similar to his own. However, the HSE made its decision in that case following a general appraisal of Ms Smyth's request, rather than consideration of individual records within its scope. This Office annulled the HSE's decision and remitted it for fresh consideration. The applicant says that the HSE subsequently released details of the sort requested at parts 1(a) to (c) of his request. He says that "[at] a very minimum the OIC would have to ask that [the Hospital] re-take the decision, specifically in relation to parts (a), (b) and (c) of [his] request, if it is to be consistent with the above-mentioned case. But [he would] respectfully ask the Commissioner to go a step further and ask that, in relation to those first three parts of [his] request, the FOI Body be compelled to release the sought-after information."

I have no basis to remit parts (a) to (c) of the request on the basis suggested by the applicant. The Hospital clearly made its decision on records covered by parts 1(a) to (e) of the applicant's request, which was not the case in Case No. 160203. Furthermore, this Office's decision in Case No. 160203 did not consider or decide whether those details sought by Ms Smyth that are similar to parts 1(a) to (c) in the present case should be released under the FOI Act. The fact that the HSE chose to so does not create any binding precedent.

I do not consider it appropriate for me to direct release of "a simple register of consultants with their relevant contract details". Such details, or the details at parts 1(a) to (c) of this request, might well fall within the exceptions to the definition of personal information referred to later in this decision if sought in their own right. However, the request was not for such information in its own right. It is a matter of fact that parts 1(a) to (g) of the request are all concerned with compliance related information, even though it went on to ask for this information to be "broken down" into various sub-categories. In other words, the sub-categories listed are governed by "information held regarding ... consultants' adherence to their contracts".

Parts 1(a) to (e): Names, Specialties and Sub-Specialties of Consultants - Section 37 (Personal Information)
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", gives 14 examples, and lists a number of exclusions to what can be considered to be personal information where public servants and service providers are concerned.

The Hospital's original decision clearly indicates it considers that release of details of specialty and sub-specialty would, in the context of the material released to date on foot of the request, identify the relevant individual consultants as much as would the release of their names. I see no reason to dispute this contention. I will refer to the names, specialties and sub-specialties of the consultants concerned as "the identifying information" in the rest of this decision.

The applicant's view of the 2008 Consultants' Contracts is that the information he is seeking is not personal information. He maintains that at least some, if not all, of the information is covered by the exclusions where public servants are concerned. In this regard, he says that an express excluded category is information relating to the performance of their functions by government employees. He also refers to comments by Professor Maeve McDonagh in her book "Freedom of Information Law" (3rd Ed.), Round Hall 2015; to decisions made by this Office in Case Numbers 020248 and 010102; and to the HSE's guidance on FOI for health service staff.

While positions published by FOI practitioners can be useful in considering how the Act should be applied, these are not legally binding on this Office. Neither can it be presumed that past decisions made by this Office set a binding precedent. Case Numbers 020248 and 010102 dealt with requests for access to a contract of employment and to details of salaries paid. They did not deal with, and are not relevant to, records showing whether consultants are deemed to have complied with particular terms of their contracts.

Section 2 of the FOI Act - What is Personal Information?
"Personal information" is defined at section 2 of the FOI Act as

"information about an identifiable individual that, either -
(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or
(b) is held by an FOI body on the understanding that it would be treated by that body as confidential" ...

Section 2 goes on to list, "without prejudice to the generality of the foregoing", 14 examples of personal information. It also provides that certain types of information about an individual FOI body employee are excluded from the definition of "personal information", as follows:

"(I) in a case where the individual holds or held -

(A) office as a director of,
(B) a position as a member of the staff of, or,
(C) any other office, or any other position, remunerated from public funds in,

an FOI body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid,"

Applying the above qualifications to the circumstances of this case, it is clear that the following do not constitute personal information: the name of the individual in the context of being a member of staff of the Hospital; information regarding the office, position or functions of that member of staff of the Hospital; the terms upon which the member of staff holds office or occupies a position; and records created by that employee in the course of and for the purpose of, the performance of his/her functions. Section 2 contains similar exclusions where service providers are concerned.

Application of Sections 2 and 37(1)
The applicant appears to argue that the information sought does not fall into either (a) or (b) of the definition of personal information. I do not agree. The fact that one has, or has not, been deemed to have complied with the terms of one's employment contract is information that, in the ordinary course of events, would be known only to the individual, or his or her family or friends. This is not changed by the fact that the employer would also be party to such information. Furthermore, I also consider information about the extent to which one has been deemed to have complied with one's employment contract to be information that is held by the employer on the understanding that it would be treated as confidential.

In addition, the question of whether information is personal information is not determined only by whether it falls within parts (a) or (b) of the definition. It is well settled that where information can be classified as one of the 14 (non-exhaustive) examples of personal information, there is no need for the requirements at (a) or (b) of the definition to also be met (see Fennelly J.'s judgment in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda case").

Two examples of personal information that are relevant in this case are "(iii) information relating to the employment or employment history of the individual" and "(v) information relating to the individual falling within section 11(6)(a)". Section 11(6)(a) is concerned with personnel records of individuals who are members of staff of an FOI body. It defines personnel records as records "relating wholly or mainly to one or more of the following, that is to say, the competence or ability of the individual in his or her capacity as a member of staff of an FOI body or his or her employment or employment history or an evaluation of the performance of his or her functions generally or a particular such function as such member,".

In my view, information about one's compliance with any terms and conditions of one's employment is "information relating to the employment or employment history of the individual". Not only does the information sought concern the consultants' public service employment histories, it also provides an insight into the extent to which those consultants carry out private work.

Furthermore, in so far as consultants may be employees as opposed to service providers, I also consider such information to be information relating to the relevant consultants "falling within section 11(6)(a)". While the applicant says that he is "not seeking records concerning the performance of the consultants in question (in terms of their professional standards) or details concerning salaries, sick leave information, performance appraisal etc", the fact is that he is seeking information concerning the performance of identifiable individuals, in terms of compliance with a particular requirement of their contracts of employment.

In addition, I do not accept the applicant's view that this information is captured by any of the exclusions to the definition of personal information where an employee of an FOI body is concerned.

Accordingly, I find that the identifying information relevant to parts 1(a) to 1(e) of the request, as contained in the records considered by the Hospital, is personal information about the consultants that is not captured by any of the exclusions to the definition of personal information where public servants or service providers are concerned. I find that the information is exempt under section 37(1) of the FOI Act.

Before I go on to deal with the remainder of section 37 as it applies to these details, I will comment on the applicant's references to Professor McDonagh's book. He says, correctly, that she describes the exclusions to the definition of personal information as being "designed to prevent public bodies invoking the personal-information exemption in order to refuse requests for access to information concerning the performance of their functions as government employees or contractors". However, as set out above, the exclusions do not provide that information "concerning the performance" of an individual public servant's, or service provider's, functions is not personal information. I believe that the exclusions are more properly characterised as being intended to prevent FOI bodies from relying on section 37 to refuse to grant access to records created by individual staff or service providers in the course of their work. As Professor McDonagh also says (as noted by the applicant), the purpose of the personal information exemption is to ensure that it "will not be used to exempt the identity of a public servant in the context of the particular position held or any records created by the public servant while carrying out their official functions". This is not the sort of information being sought in this case.

Section 37(2)
There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply.

I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) that the details concerned do not relate solely to the applicant; (b) that the third parties have not consented to the release of their personal information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5)
Section 37(5) provides that a record, which is otherwise exempt under section 37(1), may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I do not consider that the release of the information at issue would benefit the third parties, as envisaged by section 37(5)(b) of the FOI Act; neither has the applicant made any argument that it would.

Section 37(5)(a) - The Public Interest

The applicant refers to a decision of this Office (Case No. 150165), which he says considered whether the public interest required the release of membership details of Fish Producer Organisations (FPOs), including the vessels' owners' names and other information. He notes that my decision found that there was a "public interest in promotion of openness and accountability ... in relation to how the [relevant FOI body] manages its relationship with the Irish fishing industry.". The applicant says that "consultants influence public health policy by virtue of their relationship with [voluntary hospitals and] the HSE". He says that there "is a clear public interest at stake served in releasing this data, which is central to a better understanding of effectiveness or otherwise of the 2008 Consultants' contract." He also refers to consultants being "paid from the public purse" and that "release would help better inform this important public policy issue".

I believe that the OIC decision to which the applicant refers is that in Case No 140074 - Mr X and the Department of Agriculture, Food and the Marine (as opposed to Case No. 150165). However, it is difficult to see how the circumstances of that case are directly relevant to this one. I do not consider information detailing a consultant's compliance with terms of their contract to be on a par with details of a vessel owner's membership of an FPO held in the context of the Common Fisheries Policy, which I did not find to be personal information in the particular circumstances of that case. The information at issue in this case does not concern any attempts by consultants to "influence public policy". As regards the public purse, the fact that all public servants are paid from this does not take away their entitlement to privacy in respect of matters that do not come within the exclusions to the definition of personal information.

In Case No 140074, I said that even if the relevant information was personal, the related "privacy rights are not particularly strong since they arise in a commercial context". I have found the information sought in this case to be personal information, and thus, related privacy rights are much stronger than in Case No. 140074.

On the matter of where the public interest lies, I have had regard to the comments of the Supreme Court in the Rotunda case. It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.

In this case, there is a public interest in ensuring that the Hospital is open about, and can be held accountable for, how it carries out its various functions, including how it monitors compliance by consultants with the terms of their contracts. In this regard, I understand that the Consultants' Contract ultimately provides for fines to be imposed on a consultant for breaching the public:private requirements of their contracts. Thus, there can be said to be a public interest in ensuring that the Hospital is open about, and can be held accountable for, its management of public monies (that is, in terms of the penalties it may impose on its consultants).

It seems to me that the details provided to the applicant to date, which concern levels of compliance generally (albeit without details of the individual consultants to which the details refer), meet these public interests to a significant extent. Clearly, release of the associated identifying information would provide further insight in this regard. However, I do not accept that one needs to know the identity of individual consultants to be able to make a reasonable assessment of the robustness of compliance measures employed in the Hospital, and/or how it manages public monies (in terms of the penalties it may impose on its consultants), based on the information already released. Accordingly, I am not persuaded that release of the identifying information would significantly further serve the public interests I have identified above in favour of such release in this case.

Furthermore, any general interest that the public may have in knowing which details concern which consultant does not equate to there being a "true public interest" in release of the identifying details. FOI is concerned with the activities of public bodies generally and is not necessarily a means by which all information about the activities of individual public servants is intended to be made known to the public at large.

Section 11(3) requires an FOI body, when performing any function under the FOI Act, to have regard to such matters as "achieving greater openness in the activities of FOI bodies"; "promoting adherence by them [i.e. FOI bodies] to the principle of transparency in government and public affairs"; to "the need to strengthen the accountability and improve the quality of decision making of FOI bodies"; and the need to inform comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the "role, responsibilities and performance of FOI bodies." The emphasis in section 11 is clearly on the activities of FOI bodies, not on the activities of identifiable public servants.

This is not to suggest that, in some instances, information relating to the performance of individual public servants or service providers should not be released in order to promote the openness and accountability of an FOI body. Different types of personal information about a public servant or service provider would have varying degrees of sensitivity. Furthermore, an FOI body would not necessarily be required to provide such a level of detail that would enable individual public servants to be identified.

Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). When considering section 37(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. It is also relevant that the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large. I do not agree with the applicant's view that "[what he is] seeking in terms of intrusiveness, falls far short of salary details". To the contrary, I consider that a significant invasion of privacy would occur if information about the extent to which a consultant complied with any aspect of his or her public contract, and also regarding the extent of the private (i.e. non public funded) work he or she carried out, was placed in the public domain.

Having considered the weight of the public interest factors in favour of, and against release, I find that the public interests in favour of release as set out above do not outweigh the public interest in protecting against the invasion of the individual consultants' rights to privacy that would arise from release of the identifying information.

To make it clear, any identifying information that the Hospital may have been willing to release in this case is, further to the above finding, exempt from release under section 37 of the FOI Act.

Parts 1(f) and (g): Actions and Notifications - Effectively Refused
In response to this Office's request for submissions on its apparent effective refusal of records relevant to parts (f) and (g) of the request generally, the Hospital says it "submits a template letter given to each consultant ...". It is open to the Hospital to release this "template letter" to the applicant, for information purposes. However, it did not explain why it considered this document to be relevant to the request, which clearly sought much more detailed records. Neither did it explain why it considered the provision of this template letter to this Office to meet the requirements imposed on it by section 22(12)(b) of the FOI Act. Nor did it comment on its apparent failure to consider any records relevant to parts (f) and (g) for release.

The applicant maintains that he should be given access to the relevant correspondence or, at least, that they should be released "in a redacted form as a compromise". He also notes that another Hospital released such records to him, un-redacted.

The most appropriate decision for me to make in the circumstances is to annul the Hospital's effective refusal of parts (f) and (g) of the request (that is, in relation to any such records that existed at the date of receipt of the request), and remit those aspects of the request for fresh consideration by the Hospital in line with the requirements of the FOI Act.

However, it should be noted that, in making this direction, I have not considered the extent to which records relevant to parts 1(f) and (g) existed at the date of receipt of the request, or the extent to which any such are held electronically or in paper form. Neither have I considered what would be involved in searching for such records, nor whether information in any such records is required to be released under the FOI Act. I also wish to make clear that my remittal of parts 1(f) and (g) should not be taken as a direction or even a suggestion to any party that I consider any relevant records that exist should be released. As the applicant is aware, the fact that another Hospital released records, whether identical or similar to those sought at parts 1(f) and (g) of this request, does not create any binding precedent.

Information for 2015 and 2016 (up to the date of receipt of the applicant's request of 8 July 2016): Information Does Not Exist (Section 15(1)(a))
This Office invited submissions from the Hospital in relation to various matters concerning its refusal of compliance related information for 2015 onwards on the basis that "information for 2015 [presumably, verified compliance related information] is not available or processed at this time." The Hospital was also asked for various details relevant to the applicant's contention that he should be provided with the relevant information "even in its raw form" that he says, if released "could, of course, come with that caveat - namely that it is not 'verified or validated."

The Hospital's submission simply states that it "will not be in a position to provide the requester with the consultants' name and sub speciality for the years 2015 as this information is not available". This does not discharge the requirements placed on the Hospital by section 22(12)(b) of the FOI Act. I find the Hospital not to have justified its effective reliance on section 15(1)(a) in relation to information relevant to parts 1(a) to (e) of the request for 2015, and for 2016 up to the date of receipt of the request. The most appropriate decision for me to make in the circumstances is to annul the Hospital's effective refusal of such information, and remit those aspects of the request for fresh consideration by the Hospital in line with the requirements of the FOI Act.

The Hospital and applicant should take note of the following, however:

The Hospital should determine whether the applicant is seeking records containing validated or unvalidated information. That said, the applicant only seems to have specifically raised the question of access to unvalidated information for the first time in an email to this Office of 13 February 2017. In any event, the Hospital's decision should make it clear whether records containing the requested information existed at the date of receipt of the request, and, if not, should explain why this is so.

Furthermore, an FOI body is not required to create a record in order to grant an FOI request, except where section 17(4) is relevant. Section 17(4) requires, the taking of "reasonable steps" (as defined in section 17(4)) to extract relevant information from a database. I have already said that, in other similar cases, that where information on a database requires further validation, analysis, or processing in order to create the specific information that has been requested, I would not consider this to be a "reasonable step" of the sort set out in section 17(4).

Should records exist that contain information requested by the applicant, the Hospital should proceed to make a decision based on the records concerned. It remains open to it, if considered appropriate, to rely on the administrative provisions in section 15 of the FOI Act. It is open to the applicant to notify the Hospital if he does not wish to proceed with the remitted aspects of his request in light of my decision in this case.

Part 1(h)
As explained under "Scope of the Review, my review did not include the Hospital's decision on part 1(h) of the request. If the applicant maintains that, as argued in his email of 13 February 2017, I should compel release of the Consultant Workload Status Reports for 2015/2016, I do not accept that such records are covered by the scope of part 1(h) of his request, which sought "overall status reports ... prepared for HSE monitoring". Further to submissions made to this Office by other Hospitals and the HSE in similar cases, I am satisfied that "HSE monitoring" stopped in Quarter One of 2014 and any "overall status reports" prepared from then onwards were not "prepared for HSE monitoring".

Commentary
The applicant and others have made a number of similar requests to other Hospitals and the HSE. It is fair to say that the requests have proved difficult for the FOI bodies to process and decide upon. Resulting reviews have also proved complex for this Office to deal with and have absorbed significant resources. Of course, these difficulties do not change the situation whereby decision makers, including myself, must apply the provisions of the FOI Act. It is a matter for the Hospitals and HSE to explain to applicants why the actual compliance systems in place, and how related records are held, may be contributing to the difficulties in dealing with these requests. In turn, it is for the applicant to consider whether, in such circumstances, making detailed FOI requests of the sort he has been making is worthwhile.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Hospital's decision on the applicant's request, as follows:

(i) I find that the names, specialties and sub-specialties of the consultants (parts 1(a) to (e) of the request, records up to 2014, refer) are exempt under section 37 of the FOI Act.

(ii) I annul the Hospital's effective refusal of records relevant to parts 1(f) and (g) of the request (that is, which existed at the date of receipt of the request) generally, as well as its refusal of information relevant to parts 1(a) to (e) of the request for 2015, and for 2016 up to the date of receipt of the 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 these aspects of the request, 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 on these parts of the request.

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.

Peter Tyndall
Information Commissioner