Whether the Hospital was justified in its decision to withhold certain information from a letter between two named medical professionals on the ground that it falls outside the scope of the applicant’s request or it is exempt from release under section 37(1) of the FOI Act

31 August 2020

Background

On 15 December 2019, the applicant submitted a five-part request to the Hospital seeking access to:

1. All Documents relating to training provided to technical service staff in the use of, and lowering of lifts in emergencies from January 2014 to present,
2. All Documents relating to a loss of Electricity supply and recommendations and investigations made from January 2014 to present,
3. All documents relating to the maintenance and servicing and updates of the electric power generators, switchgear and circuit breakers from January 2014 to present,
4. All email and communications from technical services relating to power failures and or safety issues with lifts January 2014 to present, and
5. All emails and communications from head of iqs in relation to power failures and safety issues with lifts January 2014 to present.”

On 17 February 2020, the Hospital decided to part-grant the request. In respect of parts 1, 2, 3, and 5, it released a substantial number of records, redacting certain information under section 37(1) on the ground that release of the redacted information would involve the disclosure of personal information relating to third parties. It refused part 4 under section 15(1)(a) on the ground that the records sought do not exist.  On 28 February 2020, the applicant sought an internal review of that decision, suggesting that there were additional records not received. The Hospital issued its internal review decision on 6 April 2020.  It released further records to the applicant, redacting certain information either under section 37(1) or on the basis that it did not come within the scope of the request.  It also refused access to some records on the ground that they do not exist.

On 15 April 2020, the applicant wrote to the Hospital suggesting that three items of correspondence mentioned in the records he had received had not been provided to him.  In response, the Hospital issued four records to him, two of which had previously been released.  It also noted that a thorough search had been undertaken in relation to the matter and reiterated his right of review by this Office.  On 30 April 2020, the applicant contacted the Hospital stating that he was seeking all documents and correspondence between two named staff members of the Hospital (Dr A and Professor B) “relating to a power failure and a patient being trapped in a lift June 2017 to present”.  Following this, the Hospital again stated that no further relevant documents had been found and it informed the applicant of his right of review by this Office.

On 8 May 2020, the applicant sought a review by this Office of the Hospital’s decision.  He explained that he had not received a specific letter between Doctor A and Professor B. He provided a copy of an extract from a record comprising the minutes of a Serious Incident Review Team meeting of 27 June 2017. The record indicated that there had been an electricity power outage on 18 June 2017, one of the impacts of which was an incident involving a transfer of a critically unwell patient to the Intensive Care Unit. The record further indicated that the details of the incident were outlined in a letter from Doctor A to Professor B. Regrettably, the patient in question was the applicant’s father, now deceased. The applicant subsequently confirmed to Ms Swanwick of this Office that this was the letter he was seeking.

During the course of the review, the Hospital located the letter in question. It said the record had not originally been found as it was located on a computer folder of a staff member who had since left the Hospital.  It released a redacted version of the letter, on the ground that the withheld information was not relevant to the applicant’s late father or to the request.  Upon receipt of the redacted record, the applicant sought clarification of the redactions made.  Subsequently, Ms Swanwick of this Office requested a further submission from the Hospital in relation to its decision to redact the letter.

I have now completed my review in this case. In conducting the review, I have had regard to the correspondence between the Hospital and the applicant as outlined above and to correspondence between this Office and both the Hospital and the applicant on the matter.  I have also had regard to the content of the letter at issue.

Scope of Review

As I have outlined above, the applicant confirmed that he was seeking access to the letter from Doctor A to Professor B and he essentially challenged the appropriateness of the decision to withhold part of that letter. 

It is the Hospital’s position that all of the information contained in the letter relating to the incident involving the applicant’s late father has been released to him.  It argues, in essence, that the redacted information falls outside the scope of his request, as it relates to the treatment of another patient and a separate service provided by the Hospital, or is exempt from release under section 37(1) of the FOI Act.

The applicant’s request was not confined to records relating only to the incident involving his late father. It included a request for all documents relating to a loss of electricity supply and recommendations and investigations made from January 2014 to the date of his request (part 2). The letter at issue comprises a report written by Doctor A outlining a number of issues which arose because of the power loss at the Hospital. I am satisfied that the entire record comes within the scope of the applicant’s request.

As such, the scope of this review is concerned solely with whether the Hospital was justified in redacting part of the letter of 19 June 2017 under section 37(1) of the FOI Act.

Analysis and Findings

Section 37(1), subject to the other provisions of section 37, provides for the mandatory refusal of a request where access to the records concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester. Section 2 of the FOI Act defines the term “personal information” as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential.

The redacted parts of the record concern an incident that arose due to the power loss concerning a particular service the Hospital provides. In its submission to this Office, the Hospital argued that the redacted information contains personal information relating to employees of the Hospital.

For the purposes of the Act, certain information is excluded from the definition of personal information. Under Paragraph I of section 2, personal information does not include the name of a staff member of an FOI body, information relating to his/her position or its functions, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions. 

Having reviewed the redacted information at issue, I am satisfied that any references to medical professionals fall within the exclusion provided for at paragraph I. I find that section 37(1) does not apply to such information. For the sake of completeness, I should add that while the redacted information mentions a patient referral, I am satisfied that the disclosure of the redacted information would not involve the disclosure of personal information relating to an identifiable individual.

In conclusion, therefore, I find that the Hospital was not justified in redacting the information at issue under section 37(1).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Hospital’s decision to redact the letter at issue and I direct that it be released in full.

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