Case Number: 170351

Whether the Hospital was justified in refusing the applicant's request for access to records relating to the governance and ownership of the new maternity hospital under section 15(1)(c) of the FOI Act on the ground that granting the request would cause a substantial and unreasonable interference with the work of the Hospital

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 3 May 2017, the applicant requested access to the following records for the six-month period covering June 2016 to November 2016:

• All correspondence between St Vincent's Healthcare Group and the National Maternity Hospital Holles St regarding the new maternity hospital at St Vincent's;
• Internal correspondence regarding same.

On 17 May 2017, the Hospital wrote to the applicant to offer assistance in amending the request on the basis that, as stated, it was overly broad and unclear as to what information was specifically sought. On 24 May 2017, the applicant amended her request by clarifying that she sought documentation relating to the governance and ownership of the new hospital and that she was disregarding design and finance.

In a decision dated 8 June 2017, the Hospital refused the amended request under sections 15(1)(b) and 15(1)(c) of the FOI Act. The Hospital stated that the request did not contain sufficient particulars to enable it to identify the records sought through reasonable steps. The Hospital found that processing the request would therefore cause a substantial and unreasonable interference with or disruption of work of the Hospital. On 12 June 2017, the applicant sought an internal review of the Hospital's decision, suggesting that the Hospital had not offered her adequate assistance in amending her request. She stated that she "will need to know specifically what documents and information St Vincent's Hospital has in this area in order to be specific about the appeal". On 30 June 2017, the Hospital affirmed its decision to refuse the applicant's request under section 15(1)(c) of the Act. On 9 January 2017, the applicant applied to this Office for a review of the Hospital's decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made to date. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with the question of whether the Hospital's decision to refuse the applicant's amended request for records from June to November 2016 relating to the governance and ownership of the new maternity hospital at St. Vincent's was justified on the ground that granting the request would cause a substantial and unreasonable interference with or disruption of the work of the Hospital.

Analysis and Findings

Section 15(1)(c) of the FOI Act provides that a request for records may be refused if granting the request would, by reason of the number or nature of the records concerned or the nature of the information concerned, require the retrieval and examination of such number of records or an examination of such kind of records concerned as to cause a substantial and unreasonable interference with or disruption of the work of the FOI body concerned, including the disruption of work in a particular functional area. However, section 15(4) provides that a body cannot refuse a request under section 15(1)(c) unless it has first assisted, or offered to assist, the requester in amending the request so that it would no longer fall to be refused under section 15(1)(c). While the Act is silent on the precise nature or level of the assistance to be offered under section 15(4), this Office takes the view that the mere offer to amend a request so that it no longer falls to be refused under section 15(1)(c), of itself, is not sufficient for the purposes of compliance with the section, given the general requirement on FOI bodies, under section 11(2), to give reasonable assistance to requesters in relation to the making of requests. As such, this Office considers that before a body can refuse a request under section 15(1)(c), it must first have provided reasonable assistance to the requester in amending the request, or have offered to provide assistance in cases where the requester is not willing to amend the original request, in order to comply with the requirements of section 15(4). On the question of what constitutes reasonable assistance, the level or nature of the assistance to be provided can vary significantly from case to case and will depend on the particular facts and circumstances of the case. It will often also depend on the willingness of the parties to engage in meaningful discussion on what might be acceptable in the circumstances. However, this Office recognises that FOI bodies should not be compelled to carry out the very work they are seeking to avoid by refusing a request under section 15(1)(c) before they can be said to have offered a reasonable level of assistance.

In the case, the Hospital's letter to the applicant dated 17 May 2017 explained that the use of the phrase "all correspondence" was broad and unclear, and it asked the applicant to specify the type of information sought and, if possible, to narrow the dates of the request. In a submission dated 31 August 2017, the Hospital stated that it also discussed the scope of the request with the applicant by telephone on 19 May 2017, noting that the request spanned a six-month period of extensive negotiations involving multiple parties. The applicant was referred to the publically available website www.nmhplanning.ie to help focus the scope of her request. Following another telephone call on 24 May 2017, the applicant amended her request as follows: "I am seeking documentation relating to the governance and ownership of the new hospital. I am disregarding design and finance."

The Hospital has also explained that records relating to the new maternity hospital are held in different departments throughout the Hospital in both hard and electronic format. The records are not stored in a filing system matching the categories of "governance" or "ownership" and therefore it would not be possible to identify the number of relevant records without retrieving and examining all of the records. The Hospital states: "The retrieval and examination of these records would have required a dedicated resource and extensive hours to sort through and categorise, first by date and then by subject matter." A keyword search under the relevant terms also proved too broad and yielded results that would have required a vast amount of time to search through.

It is indisputable that the plans for the new maternity hospital have generated a significant amount of controversy in relation to the issues of governance and ownership. The six-month period covered by the request included a period of extensive negotiations over governance mediated by Kieran Mulvey and preceded the decision of the Sisters of Charity in May 2017 to relinquish ownership of the Hospital. In the circumstances, I accept that the request necessarily involves a voluminous amount of records in both electronic and hard copy format. Even assuming that records relating to the new maternity hospital could be retrieved by the categories of governance and ownership, I am satisfied that processing such a request covering the six-month period concerned would require the examination of such a number of records or an examination of such kind of the records concerned as to cause a substantial and unreasonable interference with the work of the Hospital. I am also satisfied in the circumstances of this case that the Hospital offered a reasonable level of assistance in writing to the applicant and discussing the matter with her twice by telephone. I note in particular that the Hospital explained that the phrase "all correspondence" was broad and unclear, yet the applicant subsequently amended her request to "documentation", which, if anything, is wider in scope to "correspondence". Accordingly, I find that the Hospital was justified in refusing the request under section 15(1)(c) of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Hospital in this case.

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