Case Number: 170012

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 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 applicant made an 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."

The Hospital did not issue a decision on this request within the required four week time frame. The applicant sought an internal review of this effective refusal on 26 October 2016. The Hospital emailed the applicant on 23 December 2016, which was outside the three week time frame in which internal review decisions are required by the FOI Act to be made. The subject of the email was "Freedom of Information request". It said that it was attaching "summary information". The "summary information" is a list headed "Letters to Consultants" (which covers Quarter One 2012 to Quarter 4 2015, and seems to show the numbers of what are described as "Letter #1" and "Letter #2") and a number of Consultant Workload Status Report v2 reports. The email said that the Hospital was not in a position to release further details until it clarified the conflict between its views and those of the applicant "in relation to personalised data". On 6 January 2017, 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 of the applicant's request of 5 May 2016. There is no need for me to establish, in this case, if the applicant is satisfied with the number of Consultant Workload Status Report v2 reports released to him (part 2 of the request refers).

Findings

Under sections 13(2)(d) and 21(5)(c) of the FOI Act, where an FOI body decides to refuse to grant a request whether wholly or in part, the notification of the decision shall specify:

• the reasons for the refusal;
• any provisions of the FOI Act pursuant to which the request is refused;
• the findings on any material issues relevant to the decision; and
• particulars of any matter relating to the public interest taken into consideration for the purposes of the decision.

The Hospital did not issue any original decision in this case. The Hospital's email to the applicant of 23 December 2016 clearly did not contain the required level of detail set out above. I do not consider it to be a valid internal review decision that is capable of review by this Office.

The most appropriate decision for me to make in the circumstances is to annul the Hospital's effective refusal of the applicant's request and remit it for fresh consideration by the Hospital in line with the requirements of the FOI Act. The effect of this is that the Hospital is required to make a new, fresh instance, decision on records held within the scope of the request i.e. any such records that existed at the date of receipt of the request.

Furthermore, in making its fresh decision, the Hospital should have regard to the requirements of section 13 of the FOI Act, and also the Central Policy Unit website which details, along with other guidance material, how public bodies should process FOI requests generally (see http://foi.gov.ie/guidance/manuals/). It should also refer to the Information Commissioner's decision in Case No. 160509, which concerns a similar request made by the applicant to Beaumont Hospital. It is also open to the applicant to notify the Hospital if he does not wish it to proceed with the remitted request in light of the decision in Case No. 160509.

Decision

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