Case Number: 170015

Whether the HSE was justified in refusing to fully grant parts of the applicant's request, which related to records concerning the HSE's 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 28 January 2016, the applicant made an FOI request, for the following information, which she asked to be supplied electronically in so far as possible:

"1. All information held regarding HSE consultants' adherence to their contracts in respect of public vs private practice for 2013, 2014 & 2015 for each Acute Hospital in the country.

This includes the name of consultants (by name or speciality or sub-speciality) in each hospital, who were non-compliant with their contractual limits on private practice (making clear their contract type), to what extent they were non-compliant and 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.

In presenting the information can you please provide it broken down by each Acute Hospital and with details of each permanent consultant by -
(a) Consultant Name
(b) Speciality and sub-speciality
(c) Consultant Contract (e.g. Consultant Contract 1997, Consultant Contract 2008)
(d) 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) Percentage deviation from level in contract
(g) 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" (anonymised) for each hospital prepared for HSE monitoring and for each quarter of (2013, 2014 & 2015), detailing
(h) total number of consultants who have been identified in breach of their contract - Phase 1
(i) total number of consultants who have been formally notified of their con-compliant status (1) yet to meet a Clinical Director (CD); (2) who have met a CD & have been notified that their 6 month correction period has commenced - Phase 2
(j) total number of consultants who's (sic) six month period has elapsed (1) who have not yet met with a CD; (2) who have met with a CD, to commence a further 3 month correction period - Phase 3
(k) Total number of consultants who (1) have been identified as remittance to be paid; (2) total number of consultants who have been issued formal notice to remit private practice fees to the Research & Study fund - Phase 4
(l) (1) Total value of remittance fees issued to consultants, for each quarter (2) total value of fees remitted to the private research fund, for each quarter - giving Financial Value (for each quarter/year to date."

There was no part (e) to the request.

My decision in Case No 160203, which issued on 18 August 2016, annulled the HSE's decision on the applicant's request, and remitted it for fresh consideration. See http://www.oic.gov.ie/en/Decisions/Decisions-List/Ms-Oonagh-Smyth-and-The-Health-Service-Executive-FOI-Act-2014-.html

There was considerable correspondence between the applicant and the HSE on foot of the remitted request, which I do not intend to detail. In particular, on 21 November 2016, the applicant sought an internal review of the HSE's effective refusal of the remitted request. The HSE's letter to the applicant of 21 December 2016 refused to grant her request, citing various provisions of the FOI Act. On 9 January 2017, the applicant sought a review by this Office of the HSE'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 HSE, and the applicant. I have had regard also to relevant records (copies of which were provided to this Office for the purposes of this review) and to the provisions of the FOI Act.

Scope of the Review

On 25 May 2017, this Office explained to the applicant that, for various reasons, it was possible that her application for review could be discontinued under section 22(9)(a)(vii) of the FOI Act. Section 22(9)(a)(vii) of the FOI Act provides that the Commissioner "may refuse to accept an application [for review], or may discontinue a review under this section if he or she is or becomes of the opinion that - accepting the application would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the 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 of his or her Office." The applicant was invited to significantly reduce the range of records to which she required access, and/or the range of issues that she wanted this review to determine.

In response, the applicant asked if she could be granted full access to certain records already partially granted to her, in two alternative formats. Arguably, this alters the request made and seeks different records to those under review. However, given the applicant's engagement with the process, it was decided to proceed with the review and, essentially, to see whether it could be settled on the basis of her proposals.

Accordingly, this review is confined to:

Part 1

• whether what the applicant describes as "staff lists/registers" are encompassed by parts (a) to (c) of her original request;
• whether the HSE has justified its refusal to grant access to validated Consultant Private Workload Summary Reports for 2015 that existed at the date of receipt of the request, concerning consultants in eight particular hospitals, in the alternative formats of either (i) with details of sub-specialty included or (ii) for each hospital group with consultant identifiers and hospital names redacted;
• whether the HSE has justified its refusal of (standard format) validated Consultant Private Workload Summary Reports for 2015 that existed at the date of receipt of the request, concerning consultants in other hospitals.

Part 2

• whether the HSE has justified its refusal of further anonymised "overall status reports" prepared by statutory (HSE) hospitals for HSE monitoring for 2015.

The review cannot consider, or make findings on, the extent to which the HSE hospitals monitored consultants' compliance with their contracts, or whether the HSE should have created records of the sort requested.

Findings

Part 1 - Staff Lists/Registers
The HSE released a number of "staff lists" to the applicant further to parts 1(a) to 1(c) of her request. However, it now says that I should decide this part of the review in the same way as did the Information Commissioner on 24 April 2017 in Case No 160509 (the Commissioner's decision). I should make it clear that the HSE's release to the applicant of some "staff lists" does not create any binding precedent.

The Commissioner's decision considered another applicant's very similar FOI request to Beaumont Hospital (see http://www.oic.gov.ie/en/Decisions/Decisions-List/Mr-X-and-Beaumont-Hospital-FOI-Act-2014-.html.) Mr X argued that he should be granted access to a staff list or staff register where parts of his request were the same as parts 1(a) to (c) of this request. In summary, the Commissioner said that the details concerned might well fall within the exceptions to the definition of personal information if sought in their own right. However, he did not consider the request to seek such information in its own right. The Commissioner found, as a matter of fact, that the relevant parts of the request were all concerned with compliance related information, even though it went on to ask for this information to be "broken down" into various sub-categories. He said "[i]n other words, the sub-categories listed are governed by "information held regarding ... consultants' adherence to their contracts"."

I consider the facts and circumstances which the Commissioner's decision took into account, and his analysis and decision, to be equally relevant to this case. I adopt them for the purposes of my decision on arguments made by the applicant in this case that are similar to those made in Case No 160509. I will deal only with the applicant's arguments that the Commissioner's decision was incorrect.

The applicant says it "flies in the face of section 13(4)" of the FOI Act to distinguish between whether she seeks information in its own right, or for compliance related reasons. She says the information sub-categories she sought relate to records held not only for monitoring contractual compliance but for billing, payroll etc. She does not accept that, because her request is said to be governed by an inquiry about compliance, all relevant records are deemed to be compliance related. She says that information is "inherently public in its nature or not" and that section 13(4) means that it is "entirely irrelevant" if one of the reasons why it is held or sought relates to compliance matters.

Simply put, I have no remit to consider directing release of staff lists/registers if they were not requested in the first place. Considering whether the applicant actually requested such records is entirely different to refusing to grant access to them because of her reasons for making her request, with which section 13(4) is concerned.

Section 13(4) provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons (whether stated or suspected) for the request. In other words, a request cannot be refused simply because, as the applicant puts it in her submission to this Office dated 28 January 2017, of possible "concerns about [her] highlighting individual consultants' compliance". However, neither can a request be granted simply because, again as stated in that submission, the applicant wants the information in order to "analyse the public: private ratios of each hospital department and to compare them across hospital sites and match them with NTPF [National Treatment Purchase Fund] data on waiting lists ...".

It is clear that the applicant, like the applicant in case 160509, is seeking the release of a different type of records to those actually considered by the HSE to be within the scope of part 1 of her request. On the face of it, it is difficult to understand why a request for a certain type of records should be seen as including another entirely separate type. Whether the records that were originally requested contain all the information an applicant thinks they should is not a relevant consideration.

The applicant maintains that she is not seeking compliance related information, but rather records containing "information relating to consultants' performance of their public contracts ..." (her undated reply to the HSE's letter to her of 24 November 2016 refers) or "records created by management for management purposes i.e. for overseeing consultant's public-private workload in public hospitals, as set out in the Consultants' Contract 2008" (her email to this Office of 21 June 2017 refers). This is a matter of semantics. The fundamental nature of a request, or perhaps more appropriately the fundamental nature of the records requested, does not change because the applicant contends that the requested records should contain various categories of information. This is the case even if such categories might, in their own right, appear to fall within the exclusions to the definition of personal information. This was already made clear in the Commissioner's decision.

The applicant's arguments do not give me any reason to make a different decision to the Commissioner's. I find that her request does not cover staff lists/staff registers. Accordingly, I have no remit to consider the applicant's contention that the HSE did not provide her with all such records.

Part 1 - Validated Consultant Private Workload Summary Reports for 2015 - Do Records in Alternative Format Exist?
As already explained, the applicant recently asked if she could be granted access to those records already partially granted to her with either details of sub-specialty included or for each hospital group with consultant identifiers and hospital names redacted.

The HSE says that records do not exist in either alternative format and cannot be created through reasonable steps, which seems to be a reference 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".

Records With Details of Sub-Speciality Included
The HSE says that sub-specialty details are not required for managing compliance. They are not included in Consultant Private Workload Summary Reports and the pre-determined technical specifications on the Hospital In Patient Enquiry database (HIPE), from which those reports are produced, do not provide for such a field.

I am satisfied, accordingly, that records in the format suggested by the applicant do not exist and that section 15(1)(a), which provides for the refusal of a record that does not exist, applies. The provisions of section 17(4) do not require the HSE to amend HIPE's technical specifications so that Consultant Private Workload Summary Reports can include the relevant field.

Furthermore, the HSE also says that HIPE systems do not allow for the recording of all sub-specialties, that not all hospitals choose to complete the fields for those sub specialties that HIPE can record, and that HIPE does not "talk to" the various other computer systems that would contain such information. I am satisfied that records containing a sub-specialty field can only be created manually. FOI bodies are not required to create a record in order to grant an FOI request.

Group Level Reports
The HSE says that Hospital Groups did not exist when HIPE was amended to permit the running of reports for compliance purposes. Furthermore, there was no requirement to run Hospital Group level reports of the sort suggested by the applicant when the Groups came into existence. Thus, no further technical amendments were made to HIPE at this time.

I am satisfied, accordingly, that records in the format suggested by the applicant do not exist and that section 15(1)(a) applies. I also accept that it is not possible for a record to be created from an electronic database in compliance with section 17(4) and that such records can only be created manually.

In the circumstances, there is no need for me to consider the HSE's further arguments that releasing reports in the formats suggested by the applicant would, in any event, disclose personal information about the relevant consultants.

Part 1 - Validated Consultant Private Workload Summary Reports for 2015 - Do Further Records in Current Format Exist?
It is clear from the foregoing that validated Consultant Private Workload Summary Reports for 2015 for hospitals other than the eight for which reports have already been partially released do not exist in the alternative formats suggested by the applicant. I find that section 15(1)(a) also applies to them. I have also considered whether further validated Consultant Private Workload Summary Reports for 2015 for the other hospitals, in the standard format of those already partially released, exist.

It is the HSE's position that hospitals were expected to monitor compliance, but since early 2014 were no longer obliged to create quarterly Consultant Private Workload Summary Reports. It says that the hospitals could choose whether to produce the quarterly reports for the own use, and that their different approaches are reflected in the level of records that exist. The applicant was given relevant details in this regard, which I see no need to repeat in this decision. In summary, it is the HSE's position that, in 2015, only eight hospitals chose to produce validated Consultant Private Workload Summary Reports as part of their local management process: Portlaoise, Naas, Connolly, Cavan, Monaghan, St Luke's in Kilkenny, Wexford, and Clonmel. Records produced by these eight hospitals have been partially released.

I understand that, in searching for further records that might exist, the HSE located two further validated Consultant Private Workload Summary Reports for Q2 2015 for St Luke's in Kilkenny and Wexford hospitals. It seems it was intended that they be considered for release along with the other partially released records, but were omitted in error. The HSE is not prepared to grant full access to the reports. In the circumstances, I consider the most appropriate decision for me to take is to annul the HSE's effective refusal of such records and to remit these records for it to consider afresh.

The HSE says that the remaining hospitals did not hold records relevant to the request when it was received. I have no reason to dispute the HSE's position in this regard and I find section 15(1)(a) to apply.

However, this finding does not apply to any records that might be held by hospitals in the University of Limerick Hospitals (ULH) Group. The ULH Group did not respond to the HSE's requests for information relevant to its submission to this Office. I am disappointed that the ULH Group did not cooperate with the HSE in relation to this request and that I have not been in a position to make findings on those records in this review. I have no basis on which to consider whether records within the scope of the request were held by the ULH Group hospitals when the applicant's request was received, or whether reasonable searches have been carried out for any such records. In the circumstances, I consider the most appropriate decision for me to take is to annul the HSE's effective refusal of validated Consultant Private Workload Summary Reports for 2015 for hospitals in the ULH Group (i.e. such reports that existed when the applicant's request was received) and to remit this matter for fresh consideration. It is a matter for the HSE to obtain access to the records over which it apparently has control so that it can make a decision on them in accordance with the FOI Act.

Part 2 - Do Further Anonymised "Overall Status Reports" for 2015 Exist?
The HSE granted access to a number of anonymised "overall status reports" for 2015 that existed when the applicant's request was received. The applicant says that reports are missing.
The HSE says that all relevant reports that have been located have been fully released. It outlined the position of the various individual hospitals in this regard to this Office, other than those in the ULH Group. This Office, in turn, provided general details of this to the applicant. The information provided by the HSE to this Office is sufficient for me to be satisfied that no further "Overall Status Reports" for 2015 were produced by the hospitals concerned. Although not necessary for me to consider the matter further, I am also satisfied that the hospitals concerned have carried out reasonable searches for such records. I find that section 15(1)(a) applies.

Again, I have no information on which I can assess whether section 15(1)(a) is relevant to any "Overall Status Reports" for 2015 that might have been held at the date of receipt of the applicant's request by the hospitals in the ULH Group. I am annulling the HSE's effective refusal of these records and am remitting this matter back to the HSE for fresh consideration.

Partially Released Validated Consultant Private Workload Summary Reports for 2015
The Commissioner's decision in Case No 160509 also considered Beaumont Hospital's initial refusal, under section 37 of the FOI Act, to grant access to the names, specialties and sub-specialties of the consultants (the identifying information) about whom it had released non-identifying, compliance-related, information from various validated Consultant Private Workload Summary Reports. Mr X's request was very similar to the one made in this case. While the Commissioner's decision provides considerable guidance to FOI bodies and requesters when dealing with requests similar to Mr X's and the applicant's, the applicant considers it to be incorrect.

However, the applicant's effort to narrow the scope of this review resulted in her removing the only details the HSE had withheld from those Consultant Private Workload Summary Reports it had located and released. The identifying information is consultant names, and specialty where the number of consultants in a clinical specialty in a given hospital was fewer than five. Accordingly, I have no basis on which to make a binding decision on the applicant's arguments that such identifying information should not be found to be exempt under section 37(1) of the FOI Act.

The applicant's requests to the HSE, and similar requests made to voluntary hospitals, have proved difficult for the bodies to deal with. These difficulties impacted upon the applications for review made to this Office. This Office's experience is that how monitoring is carried out in practice, and how/what records are created, are often different to the expectations on which the requests have been based. In the interests of providing further guidance to all concerned, I set out below what my decision would be in this case if I had to decide on the release of the identifying information.

The applicant maintains that the identifying information is covered by the exclusions to the definition to personal information and therefore cannot be exempt under section 37(1). She also claims that, in any event, the public interest weighs in favour of release. The Commissioner considered similar arguments in making his decision in Case No 160509. I would consider the facts and circumstances on which the Commissioner's decision on such information was based, and his analysis and ensuing decision, to be equally relevant to this case. I would also adopt them for the purposes of my decision on this issue. I see no need to repeat the Commissioner's analysis in so far as it dealt with similar arguments to some of the applicant's. I will again address only those arguments as to why she believes his decision was wrong.

Personal Information of Public Servants/Contractors
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.

The Commissioner's decision describes the two-part definition of the term "personal information", and lists certain relevant examples of what must be considered as personal information, all of which are contained in section 2 of the FOI Act. His decision also set out the types of information about an individual FOI body employee that, again further to section 2, are excluded from the definition of "personal information". Section 2 contains similar exclusions where service providers are concerned. The Commissioner's decision found that the identifying information did not fall within the exclusions and that it was personal information about the relevant consultants.

I do not accept the applicant's apparent contention that records containing the identifying information are of a sort "written or recorded in any form by the individual in the course of and for the purpose of the performance of" their functions (one of the exclusions). The records were not "written or recorded" by the consultants, and it is irrelevant that they are based on information about, or on input from, them. Simply put, the relevant exclusion ensures that, for example, a person's request for their medical records cannot be refused on the grounds that the records also contain the personal information of their medical practitioner on the basis that the records also relate to the employment or employment history of that practitioner.

Secondly, the applicant says the Commissioner incorrectly assumed that the information sought is compliance data. She explains why she should not have used the terminology in her original request, and gives various alternative descriptions, including that they relate to how hospital management manages resources. However, it does not matter how the requested records are described. If they do not fall within the narrow exclusions to the definition of personal information as set out above, they contain personal information relating to a public servant. This is the case even if they might also concern the FOI body's management of the public servant's performance and in turn the overall management of the body's resources.

Thirdly, the applicant disputes the Commissioner's findings that the relevant information met both definitions of the term "personal information". These arguments are irrelevant because the Commissioner also found the information to comprise various examples of personal information as set out in the Act and followed the interpretation laid down by the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 in applying the definition.

In any case, I would have no reason to consider that the relevant information is treated by the HSE any differently to information held by public or private employers concerning their employees' performance. I would consider such information to be held by the employer on the understanding that it would be treated as confidential (part (b) of the definition refers). Furthermore, while certain HSE staff may be privy to information contained in the records, for billing or other purposes, I would have no reason to consider them to have any right to disclose that information generally to a wider audience (part (a) of the definition refers). In this regard, release of records under FOI is equivalent to their publication to the world at large.

Finally, while the applicant says that the records were previously published by the HSE's Health Stat on a routine basis, the HSE says that it did not publish Consultant Private Workload Summary Reports. It says that a small number of reports were published in 2012, which were based on individual hospital "Overall Status Reports", and that, currently, figures on public:private mix by hospital are published in the HSE's monthly Performance Report. Accordingly, I would have no reason to accept that the HSE historically published identifying information about consultants outside of FOI, or to consider what, if any, implications this may have had for my decision.

The applicant has not made any arguments to the effect that the relevant consultants would not be identifiable further to release of details of their speciality alone (and/or sub-speciality, if this was also contained in the records). I would consider it reasonable to accept that disclosing speciality, in circumstances where the consultant numbers working in a clinical specialty in an individual hospital are fewer than five, would identify the relevant consultant, especially given other information in the public domain (such as the "staff registers" already released, Medical Council registration lists, information on individual hospital websites, etc). I would also accept the HSE's arguments that there are differences in consultant profile between sites in the same Hospital Group. I would consider that release of sub-specialty would be even more likely to lead to identification of the individuals.

In short, the applicant's arguments would not, in my view, give me any reason to make a different decision to the Commissioner's in relation to the identifying information, and I would find it to be exempt under section 37(1) of the FOI Act.

Sections 37(2) and 37(5)
For reasons set out in the Commissioner's decision, I would also find none of the exceptions at sections 37(2), or at section 37(5)(b), of the FOI Act to require release of the requested records.

In so far as section 37(5)(a) is concerned, the Commissioner's decision also describes the relevant public interests, which I see no reason to detail at any length here. In summary, there is a public interest in ensuring that the HSE is open about, and can be held accountable for, how it carries out its various functions, and in ensuring that the HSE is open about and can be held accountable for how it manages public monies (that is, in terms of the penalties it may impose on its consultants further to the Consultants' Contracts).

On the other hand, 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.

The applicant has made one argument that was not made in Case No 160509 and thus not considered by the Commissioner. She says she needs information "by way of consultant name" in order to "analyse the public: private ratios of each hospital department and to compare them across hospital sites and match them with NTPF data on waiting lists which is broken down by sub-specialties". I cannot take into account the applicant's reasons for making her request in so far as they reflect a private interest in seeking the records. However, those reasons may also reflect a public interest in ensuring the HSE's openness and accountability for its management of the NTPF or waiting lists generally. I am taking it that the applicant is arguing that additional weight should be given to the public interest in favour of release of the identifying information.

However, the fact is that release would disclose personal information about the consultants. As the Commissioner said in his decision, "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." I also note the Commissioner's view that 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. He also said that, while sometimes information relating to the performance of individual public servants or service providers may need to be released in order to promote the openness and accountability of an FOI body, this would have to take account of the sensitivity of the information and the level of detail that would need to be released to satisfy the public interest in openness and accountability.

I am not convinced that the additional weight that may be needed to be added in this case to the public interests arguments in favour of release would be sufficient to outweigh the very strong public interest in protecting the individual consultants' rights to privacy in respect of the identifying information. Accordingly, I would not direct the HSE to grant access to the identifying information.

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 affirm the HSE's refusal of validated Consultant Private Workload Summary Reports for 2015 in the alternative formats suggested by the applicant on the basis that they do not exist and that section 15(1)(a) applies;

(i) I annul the HSE's effective refusal of the two validated Consultant Private Workload Summary Reports for Q2 of 2015 for St Luke's (Kilkenny) and Wexford hospitals that were located during the review. I also annul the HSE's effective refusal of validated Consultant Private Workload Summary Reports for 2015 and anonymised "overall status reports" for 2015 (i.e. such reports that existed as at the date of receipt of the applicant's request of 28 January 2016) for hospitals in the ULH Group. I direct the HSE to undertake a fresh decision making process on the matters concerned, and inform the applicant of the outcome in accordance with section 13 of the FOI Act. The effect of this is that the HSE is required to make a new, fresh instance, decision in relation to these matters.

Furthermore, for clarity, I specify that the statutory time limit for the making of the decision begins on the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) of the FOI Act.

(iii) I affirm the HSE's refusal of further (standard format) validated Consultant Private Workload Summary Reports for 2015 and further "Overall Status Reports" for 2015 on the basis that section 15(1)(a) applies.

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