Case Number: 170167

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 27 January 2017, the applicant made an FOI request for access to records, which he asked to be supplied electronically in so far as possible.

He stated that in May 2016 he had made an FOI request for the following information and additional information in relation to consultants at the hospital and their contracts:
"In relation to consultants employed at your Hospital, I am seeking a list of:

(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.

Please provide this information in electric, tabular format, preferable in Excel (and not in PDF format scanned from an Excel)".

He said that he was seeking the above information to be released as part of his original FOI request from May 2016. If that was not possible he stated that he was requesting a fresh FOI request for the same information.

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 1 March 2017. The Hospital did not respond to this either. On 7 April 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 27 January 2017.

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 failed to issue any original decision or internal review decision in this case.

On 26 April 2017, this Office accepted the application for review and asked the Hospital to issue a letter to the applicant informing him of its effective position under the provisions of the FOI Act by 11 May 2017. It did not do so. Furthermore, and although asked to do so, the Hospital has not explained to this Office why it has failed to comply with the letter of 26 April 2017.

I also note that the applicant has not been in touch with this Office in relation to this application since it was accepted. He has not replied to emails seeking to establish if he wishes it to proceed. While it is not entirely clear, I take it that he wishes me to issue a decision on his application for review.

However, the fact of the matter is that there is nothing for me to review, in circumstances where it is unclear what exactly has been requested in the first place, and where no decision has been made by the Hospital on its interpretation of the request concerned. I have some sympathy for the Hospital, in that similar requests made by the applicant to other Hospitals have proved quite difficult for the Hospitals concerned, and also this Office on review, to deal with. However, this does not absolve the Hospital of the requirements to comply with the provisions of the FOI Act.

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/).

I will also take this opportunity to remind the Hospital and the applicant of the following comments that were contained in this Office's acceptance letters:
the Hospital's decision should make clear which of the two interpretations of the applicant's request of 27 January 2017, as suggested in the request itself, it has taken;
if considering the applicant's request of 27 January 2017 as part of his FOI request of May 2016, the Hospital is obliged only to consider relevant records that existed as at the date of receipt of the May 2016 request. Furthermore, the Commissioner's decision in Case No. 160509 (which concerns a similar request made by the applicant to Beaumont Hospital) may be useful in considering the Hospital's effective position and
if considering the applicant's request of 27 January 2017 as an entirely fresh request in its own right, the the Hospital is obliged only to consider relevant records that existed at the date of receipt of that request.

It also remains open to the applicant to notify the Hospital if he does not wish it to proceed with the remitted request.

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.

Furthermore, I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Hospital to my decision within five working days of 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.

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