15 June 2018
Whether the HSE was justified in its decision to refuse the applicant-™s request for access to further records pertaining to the investigation into the care of her husband
Background
All references to the applicant in this decision should be taken to refer to the applicant and/or her daughter, as appropriate. On 30 March 2017, the HSE received a request from the applicant for the release of all of her husband-™s medical records and any investigations into his care. On 4 April 2017, the HSE informed the applicant that, as her husband was a hospital inpatient, her request could not be processed but that her request would be kept on file and would be processed when he had been discharged. On 25 April 2017 the applicant sought an internal review of the HSE's refusal of her request. She noted that some records had been released but not all.
The HSE subsequently issued two purported original decisions letters, on 22 May 2017 and 26 July 2017, in which it stated that it was granting the request. Sadly, the applicant's husband passed away in the intervening period.
On 14 December 2017, the applicant again wrote to the HSE requesting the release of all relevant records. She noted, in particular, that no records pertaining to an internal investigation into her husband's care had been released. The HSE failed to issue an internal review decision. On 22 January 2018, the applicant, through her daughter, sought a review by this Office of the HSE's deemed refusal of her request for internal review. Following correspondence with this Office, the HSE issued its effective position to the applicant. It informed the applicant that all records relevant to the request, four files comprising 2,456 pages, were released. On 22 February 2018, the applicant informed this Office that she wanted the review to proceed as no records relating to the investigation had been released.
During the course of the review the HSE stated that it had released the terms of reference for the review (the investigation) and that the report of the review (the Systems Analysis report) would be provided when complete. Following further exchanges of correspondence, the HSE acknowledged the existence of further records relating to the ongoing Systems Analysis investigation and it argued that such records were exempt from release under section 29 of the Act, which is concerned with protecting the deliberations of public bodies.
I consider it appropriate to conclude this review by way of a formal, binding decision. In conducting my review, I have had regard to the correspondence between the HSE and the applicant as outlined above and to correspondence between this Office and both the HSE and the applicant on the matter.
Scope of Review
During the course of the review, the applicant agreed that the scope of the review could be confined to her request for records relating to the investigation into her husband's care. For the sake of clarity, and having regard to comments made by the HSE during the review regarding the scope of the original request, I am satisfied that the applicant's original request did, indeed, include a request for such records. She sought her husband's medical records and " ... any investigations into his care".
This review is concerned solely with whether the HSE was justified in refusing access to further relevant records pertaining to the investigation into her husband-™s care.
Preliminary Matters
The HSE's handling of the applicant-™s request and its subsequent engagements with this Office fell well below the required standards. In the first instance, the HSE was not entitled to delay the processing of the request on the ground that the applicant's husband was an in-patient at the time. Secondly, the original decisions issued well after the statutory timeframe and the HSE failed to issue an internal review decision when requested. Furthermore, this Office encountered significant delays in obtaining relevant information in order to progress the review. These delays necessitated a formal notification being issued to the Director General of the HSE under section 45, requiring the provision of the information sought.
As my Office has stated on many occasions, the administration of the FOI Act is a statutory function which should be afforded as much weight as any other statutory function. The delays encountered in this case were simply unacceptable. The applicant first made her request more than 15 months ago. I expect the HSE to take note of my comments and to examine how it might seek to introduce immediate improvements to its FOI processes.
Analysis and Findings
The HSE has confirmed to this Office that it holds additional records relating to its investigation into the care of the applicant's husband. It now seeks to withhold access to certain records on the ground that they are exempt from release under section 29(1) of the Act. That section provides for the refusal of a request if the records sought contain matter related to the deliberative processes of a public body and where the granting of the request would be contrary to the public interest. It is noteworthy that section 29(2) serves to disapply subsection (1) in certain circumstances.
For the exemption to apply, the HSE must show that each record contains matter related to the deliberative processes of a public body and it must be in a position to explain why granting access to each record would be contrary to the public interest. It seems to me that in this case, the HSE has essentially attempted to apply a blanket exemption to all records relating to the investigation without having any regard to the actual contents of the records. Section 22(12)(b) of the Act provides that a decision to refuse a request shall be presumed not to have been justified unless the body can satisfy this Office that it was justified. In light of the manner in which the HSE has sought to exempt all of the relevant records without first having identified all relevant records and considered their contents, I find that the HSE has not justified its decision to refuse the request in this case.
However, I do not consider it appropriate to simply direct the release of those records without having had sight of them and without having any sense of the nature and number of records involved. I note, for example, that the HSE has expressed concerns as to the consequences of releasing certain records such as records of interviews carried out in the course of such investigations.
Consequently, it seems to me that the most appropriate cause of action is to annul the decision of the HSE and direct it to undertake a fresh decision-making process in respect of the request. The applicant will have a right to an internal review and a review by this Office if she is not satisfied with the HSE-™s decision. I appreciate that remitting the case back to the HSE causes further delay for the applicant. However, I do not believe that there is an alternative appropriate course of action to take in this instance.
In considering the matter afresh, I would draw the HSE-™s attention to sections 13(2)(d) and 21(5)(c) which require public bodies to provide reasons for refusing requests, details of the provisions on which the refusals are based, and findings on any material issues relevant to those decisions.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE-™s decision to refuse the applicant's request for access to records relating to the investigation into the care of her husband and I direct the HSE to undertake a fresh decision-making process on that part of the applicant's 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.
Stephen Rafferty
Senior Investigator
